United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

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thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

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Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

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from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician 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.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

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these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her claim.
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.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

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

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Docket No. 11-1632
Issued: April 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 6, 2011 appellant filed a timely appeal from a June 6, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) finding that she received an overpayment
of compensation and a June 6, 2011 nonmerit decision denying her request for a prerecoupment
hearing. The Board docketed the appeal as No. 11-1632.
On February 28, 2011 OWCP advised appellant of its preliminary determination that she
received a $10,694.31 overpayment of compensation because it paid her compensation at an
inaccurate pay rate from November 4 to December 17, 2010 and January 1 to 28, 2011. It
further advised her of its preliminary determination that she was at fault in the creation of the
overpayment. OWCP notified appellant that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
Appellant submitted a request for a prerecoupment hearing dated March 4, 2011. On
March 31, 2011 OWCP finalized its determination that she received a $10,694.31 overpayment
and that she was at fault in its creation. On June 6, 2011 it vacated its March 31, 2011 decision
in order to consider appellant’s request for a prerecoupment hearing. By decision dated June 6,
2011, OWCP denied her prerecoupment request as untimely. It found that her request was not
date stamped until April 4, 2011 and was thus not made within 30 days of the preliminary

overpayment determination. In another decision dated June 6, 2011, OWCP again finalized the
preliminary determination that appellant had received an overpayment of compensation in the
amount of $10,694.31 and that she was at fault in its creation.
The Board has duly considered the matter and notes that section 10.432 of OWCP’s
regulations provide that, in response to a preliminary notice of an overpayment, a claimant may
request a prerecoupment hearing within 30 days of the written notice of overpayment.1 Failure
to request the hearing within this 30-day time period shall constitute a waiver of that right.2
OWCP’s regulations provide that the timeliness of the request is determined by its postmark or
other carrier’s date marking.3 The 30-day period for determining the timeliness of appellant’s
request for a prerecoupment hearing commenced on March 1, 2011, the date following the
issuance of the February 28, 2011 preliminary overpayment determination. Appellant’s request
for a prerecoupment hearing was dated March 4, 2011 and received by OWCP on April 4, 2011.
The Board notes that OWCP did not retain or scan into the record the envelope containing her
request for a prerecoupment hearing. Consequently, the date of appellant’s hearing request,
March 4, 2011, is used to determine its timeliness. As it was made within 30 days of the
issuance of the February 28, 2011 preliminary overpayment determination as required by 20
C.F.R. § 10.432, it is considered timely.4
On remand, OWCP’s Branch of Hearings and Review shall conduct the prerecoupment
hearing and following any necessary development issue an appropriate decision regarding the
fact and amount of overpayment, whether waiver of recovery of the overpayment is warranted
and if not, the rate of recovery.

1

20 C.F.R. § 10.432; see Willie C. Howard, 55 ECAB 564 (2004).

2

See Afegalai L. Boone, 53 ECAB 533 (2002); John B. Montoya, 43 ECAB 1148 (1992).

3

20 C.F.R. § 10.616(a). OWCP has administratively decided that the test used in 20 C.F.R. § 10.616(a) for
determining the timeliness of hearing requests should apply to requests for prerecoupment hearings. 20 C.F.R.
§ 10.439. Accordingly, timeliness is determined by the postmark of the envelope, if available. Otherwise, the date
of the letter itself should be used. See James B. Moses, 52 ECAB 465 (2001); William J. Kapfhammer, 42 ECAB
271 (1990).
4

Id.

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 6, 2011 are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: April 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 13-2175
Issued: February 11, 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 September 27, 2013 appellant filed a timely appeal from the April 3, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
merit review. Because more than 180 days has elapsed between the last merit decision of
OWCP, dated August 16, 2012, and the filing of this appeal, and pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 21, 2003 OWCP accepted that appellant, then a 42-year-old mail processor,
sustained a lumbosacral sprain, displacement of her L2-3 and L4-5 discs and contusion of her
right knee. She did not stop work, but performed limited-duty work for the employing
establishment.
Appellant was assessed under the National Reassessment Process (NRP) and stopped
work on September 18, 2011 after being advised that no modified work was available within her
work restrictions. Effective beginning September 18, 2011, she received disability compensation
on the daily and periodic compensation rolls.
On March 15, 2011 appellant was referred for participation in OWCP-sponsored
vocational rehabilitation efforts. The employing establishment had been unable to place her in a
limited-duty job and the vocational rehabilitation counselor was asked to help find other
employment for her.
In an August 2, 2011 decision, OWCP reduced appellant’s compensation to zero as
appellant was afforded an opportunity to participate in a vocational rehabilitation program to
return her to employment based on her medical restrictions, education, experience and other
factors, but that she declined to participate.
Appellant requested reconsideration of OWCP’s August 2, 2011 decision. In an
August 26, 2011 letter, she asserted that the employing establishment was discriminating against
her and had delayed her return to modified work, even though other limited-duty workers at the
employing establishment had been accommodated.
In a December 5, 2011 decision, OWCP denied modification of its August 2, 2011
decision suspending her compensation for failure to cooperate with vocational rehabilitation
efforts.
Appellant again requested reconsideration of the suspension of her compensation. She
argued that she had cooperated with the vocational rehabilitation program, but indicated that she
wished to return to work with the employing establishment. Appellant stated that she believed
that the rehabilitation counselor could have made a better effort to obtain employment for her
with the employing establishment.
In an August 16, 2012 decision, OWCP denied modification of its earlier decisions
suspending her compensation for failure to cooperate with vocational rehabilitation efforts.
In a letter dated February 16, 2013, appellant requested reconsideration of OWCP’s
August 16, 2012 decision suspending her compensation for failure to cooperate with vocational
rehabilitation efforts. She generally indicated that she cooperated with vocational rehabilitation
efforts by asserting that she met with her rehabilitation counselor and took various aptitude tests.
However, appellant mostly discussed at length her belief that the employing establishment had
not done enough to find her a limited-duty position at the employing establishment. She
discussed her assessment under NRP and the removal of her limited-duty work and indicated that

2

the employing establishment did not give her adequate guidance about how to return to it in a
limited-duty position.
Appellant submitted reports from attending physicians indicating that she was able to
perform limited-duty work. She also submitted administrative documents, including several
relating to her insurance coverage and efforts of the employing establishment to place her in a
limited-duty position.
In an April 3, 2013 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record6 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.7 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.8
ANALYSIS
OWCP issued a decision on August 16, 2012 reaffirming the suspension of appellant’s
compensation for failing to cooperate with vocational rehabilitation efforts. Appellant requested
reconsideration of this decision on February 28, 2013.

2

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

John F. Critz, 44 ECAB 788, 794 (1993).

3

As noted above, the Board does not have jurisdiction over the August 16, 2012 OWCP
decision. 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 her application for reconsideration, she did not show that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not identify a specific point of law or show that
it was erroneously applied or interpreted. She did not advance a new and relevant legal
argument.
In her reconsideration letter dated February 16, 2013, appellant discussed her belief that
the employing establishment had not done enough to find her a limited-duty position at the
employing establishment. She detailed her assessment under NRP and the removal of her
limited-duty work and indicated that the employing establishment did not give her adequate
guidance about how to return to limited-duty work for the employing establishment. This
argument is not relevant to the underlying issue in this case, which is whether OWCP properly
suspended appellant’s compensation for failing to cooperate with vocational rehabilitation
efforts.9 Appellant also generally indicated that she cooperated with vocational rehabilitation
efforts by asserting that she met with her rehabilitation counselor and took aptitude tests, but she
did not provide any specific details to support this assertion. She did not submit new and
relevant evidence, medical or otherwise, that would be relevant to the main issue of the present
case.
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 OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

Moreover, this argument was similar to arguments, appellant presented in prior reconsideration requests. She
discussed similar matters in her appeal papers to the Board, but she did not indicate how these matters related to her
vocational rehabilitation efforts.

4

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2103 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 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
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE NAVY, BUREAU OF
MEDICINE & SURGERY, NAVAL BRANCH
HEALTH CLINIC, Chula Vista, CA, Employer
__________________________________________

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

Docket No. 20-0125
Issued: July 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 21, 2019 appellant filed a timely appeal from a July 31, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right upper
extremity condition causally related to the accepted January 17, 2019 employment incident.
FACTUAL HISTORY
On March 12, 2019 appellant, then a 53-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on January 17, 2019 she injured her right arm
1

5 U.S.C. § 8101 et seq.

from the hand up to the shoulder when she moved and arranged 20 boxes full of medical records
while in the performance of duty. No date of work stoppage was noted.
In an employing establishment’s chronological record of medical care on January 24, 2019,
Dr. Thomas E. Stark, a family medicine specialist, noted that appellant had been seen on
January 22, 2019 for complaints of right hand/wrist pain and swelling. He stated that there was
no injury, but she had been more active on the job recently in moving heavy boxes containing
medical records. Dr. Stark noted that appellant had been seen for a flare-up of similar symptoms
in the past and had been diagnosed with carpal tunnel syndrome (CTS). On physical examination
of the right hand and wrist, he observed focal pain, tenderness on palpation and motion, reduced
range of motion, and a positive Tinel’s sign. An x-ray of appellant’s right wrist revealed no acute
osseous fracture. Dr. Stark diagnosed right hand pain consistent with CTS and recommended work
restrictions. He provided the same diagnosis in a follow-up report dated February 6, 2019. On
physical examination of the right shoulder, Dr. Stark observed tenderness on palpation and pain
on motion. On physical examination of the right hand and wrist, he observed tenderness on
palpation, mild edema, and pain on motion.
In a development letter dated March 18, 2019, OWCP informed appellant that she had
submitted insufficient factual and medical evidence to establish her claim. It advised her of the
type of evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond.
In a report dated March 19, 2019, Dr. Diem H. Vo, an osteopath and specialist in family
medicine, noted that appellant had been prescribed medication for tennis elbow. She also
answered affirmatively to the question of whether appellant’s condition was caused or aggravated
by employment activity. Dr. Vo advised that appellant could perform modified work, with
restrictions.
In an attending physician’s report (Form CA-20) dated March 19, 2019, Dr. Vo diagnosed
right CTS, right wrist tendinitis, and right medial epicondylitis, checking a box marked “Yes,”
indicating that the conditions were employment related. She noted a history of right CTS.
In a Form CA-20 report dated March 20, 2019, Dr. Vo diagnosed right CTS, right wrist
tendinitis, and right medial epicondylitis, checking a box marked “Yes,” indicating that the
conditions were employment related. In attached medical documentation, she indicated that
appellant recounted that she had been injured on January 17, 2019 when she was moving 20-pound
boxes of medical records using a dolly and experienced pain near her right wrist that radiated to
her shoulder blade. Dr. Vo noted that appellant had a previous work-related injury involving the
right wrist.
In a follow-up report dated April 2, 2019, Dr. Vo repeated the history of injury and
indicated that appellant experienced pain near her right wrist that radiated to her shoulder blade.
She noted that appellant had a previous work-related injury involving the right wrist, stating that
in 2007 appellant began handling retiring medical records, when she began to experience pain in
her right wrist, which at that time was managed by medication and physical therapy. On physical
examination of the right upper extremity, Dr. Vo observed tenderness at the medial epicondyle
and a positive Tinel’s sign. In an accompanying form report of even date, she diagnosed right

2

CTS, right wrist tendinitis, and right medial epicondylitis. In a work status report of even date,
Dr. Vo diagnosed right CTS, right wrist tendinitis, and right medial epicondylitis, recommending
work restrictions through April 23, 2019.
By decision dated April 22, 2019, OWCP denied appellant’s claim, finding that she had
not submitted sufficient evidence to establish what event(s) occurred to cause her claimed injury
on January 17, 2019, as she had not replied to its March 18, 2019 questionnaire. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.2
In a supplemental form report dated April 23, 2019, Dr. Vo recommended work
restrictions. In attached medical documentation, she reviewed appellant’s history of injury and
observed the same symptoms on physical examination as in her report of April 2, 2019. Dr. Vo
diagnosed right CTS, right wrist tendinitis, and right medial epicondylitis and recommended work
restrictions.
On May 11, 2019 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review.
Appellant submitted an employing establishment chronological record of medical care,
outlining treatment in physical therapy for right wrist pain/CTS, dated from November 29, 2007
through January 22, 2018. In a report dated January 22, 2019, Dr. Stark examined her for
complaints of right hand pain. Appellant denied injury, but noted that she had been more active
on the job recently, moving heavy boxes with medical records. Dr. Stark noted that she had been
seen for a flare-up of symptoms in the past and had been diagnosed with CTS. On examination of
the right hand, he observed generalized edema of the dorsal aspect, tenderness on palpation, pain
elicited by motion, and weakness. On examination of the right wrist, Dr. Stark observed swelling,
tenderness on palpation, a positive Phalen’s maneuver, and a positive Tinel’s sign. He diagnosed
CTS of the right upper limb. Appellant also submitted a summary of a telephone consultation with
a nurse dated February 27, 2019.
In a narrative statement received by OWCP on June 3, 2019, appellant listed duties of her
position, outlined her history of medical treatment, and reviewed previous work-related incidents
alleged to have caused injury. She stated that in 20073 she injured her right hand and wrist when
a box full of medical records fell.4 In 2012 appellant fell at work, which caused pain in her right
hand/wrist and shoulder. She further noted that on January 17, 2019 she moved two 20-pound
boxes and arranged the medical records in filing cabinets, after which her hands were very painful

2

OWCP properly adjudicated her claim as one for a traumatic injury.

3

Appellant had filed an occupational disease claim (Form CA-2) for the alleged 2007 injury which was denied by
decision dated December 22, 2019 in OWCP File No. xxxxxx920.
4

The Board notes that appellant also contended that she had intended to file a claim for occupational disease and
also noted that the claimed injury occurred on one day, January 17, 2019. Under FECA, a traumatic injury is defined
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. 20 C.F.R. § 10.5(ee). An occupational disease is defined 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).

3

and swollen. Appellant stated that her claim was for occupational disease, as her condition was
due to a repeated work environment longer than one workday or shift.
In a visit summary dated July 11, 2019, Dr. Anne E. Matich, a Board-certified neurologist,
diagnosed bilateral CTS. She provided care instructions and exercises, referring appellant for a
nerve conduction study.
By decision dated July 31, 2019, OWCP’s hearing representative modified the April 22,
2019 decision, finding that appellant had provided a statement as to the nature of her claim, but
denied the claim finding that she had not submitted sufficient medical evidence to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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 component is whether the employment incident
caused a personal injury and can be established only by medical evidence.9
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 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
5

Id.

6
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).

4

nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity condition causally related to the accepted January 17, 2019 employment incident.
In support of her traumatic injury claim of January 17, 2019, appellant submitted reports
from Dr. Stark, Dr. Vo, and Dr. Matich.
In reports dated January 22 and February 6, 2019, appellant was treated by Dr. Stark who
noted her previous diagnosis of CTS and again diagnosed CTS. Dr. Stark related a history that
she had been more active recently, moving boxes of medical records however he did not
specifically identify the accepted January 17, 2019 employment incident. As noted above, in any
case where a preexisting condition involving the same part of the body is present and the issue of
causal relationship therefore involves aggravation, acceleration, or precipitation, the medical
evidence must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition. As Dr. Stark did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the accepted
January 17, 2019 employment incident, his report is insufficient to establish causal relationship.13
On March 19 and April 2 and 23, 2019 Dr. Vo diagnosed right tennis elbow, right CTS,
right wrist tendinitis, and right medial epicondylitis. While she generally related appellant’s
diagnosed conditions to employment activity, the Board has previously explained that medical
opinion evidence should offer a medically sound explanation of how the specific employment
incident or work factors physiologically caused injury.14 As these reports from Dr. Vo did not
offer any explanation as to how the employment incident physiologically caused the diagnosed
conditions, they are insufficient to establish appellant’s claim.
In a Form CA-20 dated March 19 and 20, 2019, Dr. Vo diagnosed right CTS, right wrist
tendinitis, and right medial epicondylitis, checking a box marked “Yes,” indicating that the
condition was employment related. The Board has held however that when a physician’s opinion
11
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., Docket No. 19-1301 (issued January 29, 2020); R.D., Docket No. 18-1551 (issued March 1, 2019).
13

Supra note 9.

14

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

5

on causal relationship consists only of a checkmark on a form, without further explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.15
OWCP also received a July 11, 2019 report from Dr. Matich. While Dr. Matich noted a
diagnosis of CTS, she offered no opinion regarding the cause of this condition. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.16
Appellant submitted a summary of a telephone consultation with a nurse dated
February 27, 2019. The Board has held that medical reports signed solely by a nurse practitioner
are of no probative value, as a nurse practitioner is not considered a physician as defined under
FECA and therefore is not competent to provide a medical opinion.17
Appellant also submitted medical evidence predating the January 17, 2019 employmentrelated incident, which is not relevant to her claim for traumatic injury.18
As appellant has not submitted rationalized medical evidence to establish that her
diagnosed conditions were causally related to the accepted employment incident of January 17,
2019, the Board finds that she has not met her 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 met her burden of proof to establish a right upper
extremity condition causally related to the accepted January 17, 2019 employment incident.

15

O.M., Docket No. 18-1055 (issued April 15, 2020); Gary J. Watling, 52 ECAB 278 (2001).

16

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

17

L.T., Docket No. 19-0145 (issued June 3, 2019); T.H., Docket No. 18-1736 (issued March 13, 2019); see David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical therapists
are not competent to render a medical opinion under FECA); 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). See also S.J., Docket No. 17-0783, n.2 (issued April 9,
2018) (nurse practitioners are not considered physicians under FECA).
18

See J.F., Docket No. 10-0160 (issued July 14, 2010). To the extent appellant now claims that her condition is an
occupational disease, rather than a claim for injury on a date certain, she may file a Form CA-2 for occupational
disease.

6

ORDER
IT IS HEREBY ORDERED THAT the July 31, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 15, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1337
Issued: March 27, 2015

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 May 17, 20141 appellant, through counsel, filed a timely appeal of a November 20,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 25, 2013.
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred eighty days from November 20, 2013, the date of OWCP’s last decision, was
May 19, 2014. Since using May 21, 2014, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is May 17, 2014, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

On appeal, counsel argued that there was an unresolved conflict of medical opinion
evidence.
FACTUAL HISTORY
On February 25, 2010 appellant, then a 42-year-old mail carrier, filed an occupational
disease claim alleging that on February 24, 2010 as she picked up a parcel from a hamper of mail
she pulled a muscle in her back resulting in pain shooting down her leg. She returned to lightduty work eight hours a day on February 25, 2010.
Dr. James F. Bonner, a Board-certified physiatrist, noted appellant’s history of lifting a
heavy box in the performance of duty and examined her on February 25, 2010 diagnosing
lumbosacral (LS) strain/sprain with possibility of herniated disc. He reviewed a magnetic
resonance imaging (MRI) scan dated March 10, 2010, which demonstrated multilevel
degenerative changes and osteophyte complex as well as facet arthropathy at L3-4. Dr. Bonner
also reported moderate hyperlordosis and increased pain with facet load. OWCP accepted
appellant’s claim for sprain of LS joint and ligament on April 20, 2010.
In a note dated August 18, 2010, Dr. Bonner stated that appellant’s electrodiagnostic
studies were consistent with L5 radiculopathy. On physical examination, he reported palpable
pain in her lumbar spine and discomfort on straight leg raising.
Appellant filed a recurrence of disability on August 30, 2010 alleging on August 21, 2010
that she stopped work due to her February 24, 2010 employment injury. She stated that the
employing establishment informed her that there was only one hour of limited-duty work
available.
By decision dated September 16, 2010, OWCP informed appellant that she had not
established a recurrence of disability but authorized compensation benefits for the hours that she
had no work.
In a report dated October 21, 2010, Dr. Hagop L. Der-Krikorian, a Board-certified
neurosurgeon, examined appellant and diagnosed low back pain with bilateral radiation of pain
into both buttocks and thighs. He stated that her neurological condition was within normal limits
and found no sciatica and no motor, sensory, or reflex abnormalities. Dr. Der-Krikorian
reviewed appellant’s March 10, 2010 MRI scan and found degenerative disc disease at L5-S1
including disc osteophyte complex causing a mild degree of bilateral neural foraminal
narrowing, touching but not compressing the exiting L5 nerve roots. He also found minimal
facet arthropathy at L2, L3, and L4. Dr. Der-Krikorian stated that appellant’s electrodiagnostic
studies were consistent with a left L5 radiculopathy.
Appellant underwent an additional MRI scan on October 26, 2010, which found a mild
disc bulge at L3-4 and L4-5 with facet arthropathy without significant central canal or foraminal
narrowing. At L5-S1 the MRI scan demonstrated mild disc bulge with posterior annual tear and
bilateral facet arthropathy resulting in a mild right lateral recess and foraminal narrowing.
Dr. Der-Krikorian reviewed this study on November 23, 2010 and found mild degenerative
changes from L3-4 through L5-S1 without disc herniation, cauda equine, or nerve root

2

compression. He stated that appellant’s symptoms suggested an intermittent bilateral lumbar
radicular involvement with no clear-cut evidence of acute lumbar radiculopathy or herniated
disc.
Dr. Bonner completed a note on February 3, 2011 and reduced appellant’s work hours to
four per day due to increased back pain. He continued to support this schedule on
March 2, 2011. On May 25, 2011 Dr. Bonner stated that appellant’s physical examination
demonstrated extenuated lumbar lordosis with palpable pain in the lumbar spine with positive
sitting root sign. He opined that her symptoms were the result of her February 24, 2010
employment injury with degenerative disc disease exacerbated by a fall and documented lumbar
radiculopathy. In a note dated February 1, 2012, Dr. Bonner stated that appellant had no change
in her symptoms with good and bad days. He noted that she performed light duty with no heavy
lifting or repetitive bending. Dr. Bonner made similar findings on March 28, 2012. Appellant
had an exacerbation of her back pain on April 19, 2012 according to Dr. Bonner.
Dr. Jonathan Morgan, a Board-certified radiologist performed an MRI scan on April 24,
2012, which demonstrated stable mild bilateral facet hypertrophy at L2-3 and L3-4 and a mildly
degenerative disc at L5-S1 with mild degenerative loss of both height and signal. He interpreted
his findings as unchanged.
Appellant filed a recurrence of disability on April 23, 2012 and alleged that she sustained
a recurrence of disability on April 19, 2012. She noted that she was working four hours a day.
Appellant stated that her back “goes out” from everyday activities. OWCP authorized
compensation benefits.
In a note dated May 3, 2012, Dr. Bonner stated that appellant had experienced an
exacerbation of her back condition and was totally disabled. He reviewed her April 24, 2012
MRI scan and found progression of her degenerative changes in her lumbar spine with disc
osteophyte causing narrowing in her neural foramina. Dr. Bonner also found palpable pain in the
low back and weakness in the left lower extremity on physical examination. He found that
appellant’s back pain had returned to the normal level on May 30, 2012 and recommended that
she return to four hours of light-duty work. Dr. Bonner continued to support four hours of lightduty work through September 26, 2012. He completed a note on December 19, 2012 and found
persistent back pain radiating into her lower extremities with lumbar radiculopathy.
OWCP referred appellant for a second opinion evaluation on January 14, 2013 with
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon. In his February 1, 2013 report,
Dr. Smith reviewed the statement of accepted facts and described her history of injury. He stated
that appellant underwent MRI scans, which demonstrated a slight progression of the
degenerative changes in the 2012 study. Dr. Smith performed a physical examination and found
no spasm, atrophy, trigger points, or deformity. He stated, “Distracted straight leg raising
maneuvers are negative bilaterally.” Dr. Smith concluded that appellant had no evidence of any
focal neurological deficit in her legs. He opined that she had no ongoing objective clinical
findings of a lumbar strain. Dr. Smith further stated that appellant had no residuals from her
accepted condition. He agreed with Dr. Der-Krikorian that she had no clear-cut evidence of
radiculopathy and stated that there was no evidence of any post-traumatic compressive lesion on
the MRI scans that could be attributed to her work incident. Dr. Smith opined that the findings

3

on MRI scan were related to appellant’s degenerative disease. He stated that she could return to
regular-duty work without restrictions and required no additional treatment, testing, or activity
modification.
OWCP proposed to terminate appellant’s medical benefits and compensation for wage
loss on February 11, 2013. It found that Dr. Smith’s report was sufficiently detailed and wellreasoned to establish that her work-related disability and medical residuals had ended and to
terminate her benefits.
Dr. Bonner examined appellant on February 13, 2013 and described her ongoing pain
symptoms. He attributed this condition to her February 24, 2010 employment injury.
Dr. Bonner stated that appellant’s most recent MRI scan demonstrated progression of her
degenerative disc disease. He found palpable pain in the lumbar spine and pain with facet load
worse on the left than the right. Dr. Bonner stated that appellant should remain on light duty.
In a report dated March 14, 2013, Dr. Bonner described appellant’s history of injury and
again stated that the April 24, 2012 MRI scan revealed progression of her degenerative disc
disease and osteophyte complexes involving her L5 and S1 nerve roots. He further stated that
electrodiagnostic studies demonstrated L5 radiculopathy. Dr. Bonner stated that the functional
capacity evaluation demonstrated that appellant was incapable of performing the physical
demands of her job. He concluded, “It is my medical opinion, within a reasonable degree of
medical certainty, that as a direct result of the work-related injury that [appellant] suffered an
acute LS strain/sprain with an aggravation of a preexisting degenerative condition and
development of acute lumbar radiculopathy.” Dr. Bonner stated that appellant continued to have
significant limitations of physical activity and that she was unable to perform the functions of her
normal job.
By decision dated March 25, 2013, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective March 25, 2013 based on Dr. Smith’s report.
Counsel requested an oral hearing before an OWCP hearing representative on
April 1, 2013. He submitted a series of treatment notes from Dr. Bonner beginning March 12,
2013 diagnosing persistent ongoing pain as a result of appellant’s employment injury.
Dr. Bonner stated that she had guarding in her low back and decreased range of motion as well
as a pain with facet load bilaterally. On April 3, 2013 he stated that appellant had a burning
sensation down her left lower extremity with ongoing pain in the lumbar spine. Dr. Bonner
stated that she could not perform heavy lifting, bending, or stooping. He repeated that appellant
had palpable pain in the lumbar area and pain with facet load bilaterally with decreased range of
motion. Dr. Bonner examined her on May 2, 2013 and stated that her examination was
unchanged. In a note dated May 30, 2013, he reported palpable pain in the lumbar area and pain
with facet load. Dr. Bonner found weakness in the left lower extremity and decreased range of
motion. On July 1, 2013 he reported paresthesias and a burning sensation in appellant’s back
and left lower extremity. Dr. Bonner repeated his previous physical findings and stated that she
was capable of light-duty work.
Dr. Bonner completed a report on July 18, 2013 and stated, “It does remain my opinion
that [appellant] suffered a lumbar sprain/strain, as well as aggravation of a preexisting

4

degenerative condition.” He stated that her degenerative condition was demonstrated on MRI
scan and that this condition had “accelerated in the degree, which would not have been
anticipated if not for the traumatic event of February 24, 2010.” Dr. Bonner further opined that
appellant’s electrodiagnostic studies demonstrated active radiculopathy as a result of the
aggravation of her degenerative process, which was consistent with her symptomatology of back
pain, leg pain, and thigh pain. He stated that the aggravation was permanent based on the
objective findings of her MRI scans. Dr. Bonner concluded, “In addition it is clear that this
work-related injury has resulted in an injury that hastened the development of the underlying
condition being degenerative changes of the lumbar spine and acceleration in relation to the
ordinary course of the disease.”
Appellant testified at the oral hearing on August 7, 2013. Counsel argued that there was
a conflict of medical evidence between Dr. Bonner and Dr. Smith. Appellant stated that the
employing establishment informed her that there was no light-duty work available for her on
April 2, 2013 and that she was not currently working. She indicated that prior to the termination
decision she worked light duty for four hours a day and received compensation benefits from
OWCP for the other four hours.
Dr. Bonner completed a note on August 1, 2013 and found palpable pain in the lumbar
spine, pain with facet load bilaterally, and decreased range of motion. He also reported slight
weakness in the left lower extremity. Appellant underwent an electromyogram on August 27,
2013 which demonstrated chronic/active L5 radiculopathy. Dr. Bonner reviewed this study on
September 26, 2013 and found that she was capable of light-duty work.
By decision dated November 20, 2013, an OWCP hearing representative found that
Dr. Smith’s report was entitled to the weight of the medical opinion evidence and established
that appellant had no continuing disability or medical residuals due to her accepted condition of
sprain of the LS joint. He found that Dr. Bonner’s opinion was not sufficient to create a conflict
due to the lack of medical reasoning establishing how and why the workplace incident
aggravated her preexisting degenerative disc disease. The hearing representative noted that
Dr. Morgan found only a slight progression of mild degenerative disc disease and stable
osteophyte complexes in contrast to Dr. Bonner’s conclusions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.5 To terminate

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.6
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.7 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.8
ANALYSIS
OWCP accepted that appellant’s February 24, 2010 employment injury resulted in sprain
of LS joint and ligament on April 20, 2010. The Board finds that OWCP properly terminated her
wage-loss compensation and medical benefits.
OWCP referred appellant to Dr. Smith for a second opinion medical evaluation. In his
February 1, 2013 report, Dr. Smith reviewed the statement of accepted facts and described her
history of injury. He performed a physical examination and found no spasm, atrophy, trigger
points, or deformity. Dr. Smith noted that appellant’s distracted straight leg raising maneuvers
were negative bilaterally. He found no evidence of any focal neurological deficit in her legs.
Dr. Smith opined that appellant had no ongoing objective clinical findings of a lumbar strain. He
further stated that she had no residuals from her accepted condition. Dr. Smith agreed with
Dr. Der-Krikorian that appellant had no clear-cut evidence of radiculopathy and stated that there
was no evidence of any post-traumatic compressive lesion on the MRI scans that could be
attributed to her work injury. He opined that the findings on the MRI scan were related to her
degenerative disease. Dr. Smith stated that appellant could return to regular-duty work without
restrictions and required no additional treatment, testing, or activity modification.
The Board finds that Dr. Smith’s report is entitled to the weight of the medical evidence.
Dr. Smith’s report is based on the statement of accepted facts and includes detailed findings on
physical examination. He noted that appellant had no clinical findings of a lumbar sprain, the
accepted condition, and that she therefore had no residuals of this condition. Dr. Smith also
examined the medical evidence of record and found that there was no evidence of any posttraumatic lesion on MRI scan that could be attributed to her work incident. He concluded that
appellant’s MRI scan findings represented her degenerative disc disease. Dr. Smith concluded
that she could return to her date-of-injury position without restrictions. He provided the basis for
his conclusions by listing the negative clinical findings on examination. Dr. Smith also provided
the basis for his opinion that appellant’s degenerative disc disease was neither caused, nor
6

Id.

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

6

aggravated by her employment incident, noting that there was no evidence of post-traumatic
lesion on MRI scan. As he addressed the issues of her continuing disability and medical
residuals and provided a factual basis for his conclusions, the Board finds that this report is
entitled to the weight of the medical evidence and establishes that her accepted condition has
resolved with no disability or residuals and that OWCP properly terminated her wage-loss
compensation and medical benefits.
Appellant’s attending physician, Dr. Bonner, continued to support appellant’s disability
for work and need for medical treatment. He also opined that she had additional conditions
resulting from this incident which required medical treatment and rendered her disabled.
Dr. Bonner also diagnosed L5 radiculopathy as a result of the employment injury. On May 25,
2011 he diagnosed degenerative disc disease exacerbated by a fall and lumbar radiculopathy.
The May 25, 2011 note from Dr. Bonner does not support that appellant’s continuing
disability or medical residuals are the result of her accepted February 24, 2010 lifting injury
resulting in lumbar sprain, as he attributed her disability and medical residuals to degenerative
disc disease and lumbar radiculopathy. He further indicated that her degenerative disc disease
and radiculopathy were attributable to a fall. There is no indication that appellant has sustained a
fall in the performance of duty and such a fall is not an accepted mechanism of injury in this
claim. Any injury or condition resulting from a fall would not be compensable and would not
establish continuing disability or medical residuals as a result of the February 24, 2010
employment injury.
On July 18, 2013 Dr. Bonner continued to opine that appellant’s accepted LS sprain was
due to the February 24, 2010 employment injury. He also stated that she had sustained an
aggravation of a degenerative back condition as well as lumbar radiculopathy as a result of this
lifting incident. Dr. Bonner based his opinion on appellant’s MRI scans finding that her
degenerative disc disease “accelerated in the degree, which would not have been anticipated if
not for the traumatic event of February 24, 2010.” He further opined that her electrodiagnostic
studies demonstrated active radiculopathy as a result of the aggravation of her degenerative
process which was consistent with her symptomatology of back pain, leg pain, and thigh pain.
Dr. Bonner stated that the aggravation was permanent based on the objective findings of
appellant’s MRI scans. He concluded, “In addition it is clear that this work-related injury has
resulted in an injury that hastened the development of the underlying condition being
degenerative changes of the lumbar spine and acceleration in relation to the ordinary course of
the disease.” While these reports offer medical opinion evidence that appellant’s accepted
employment injury on February 24, 2010 resulted in additional conditions, the reports are not
sufficiently well reasoned to establish that additional conditions resulted from the employment
injury. Dr. Bonner did not explain how and why he believed that the lifting incident resulted in a
permanent aggravation of her preexisting condition of degenerative disc disease and the resulting
lumbar radiculopathy. These reports also fail to support appellant’s claim for continued
disability or medical residuals a result of her accepted lumbar sprain. Dr. Bonner did not
attribute her current disability for work or her medical residuals to her accepted condition.
Dr. Morgan performed an MRI scan on April 24, 2012 which demonstrated stable mild
bilateral facet hypertrophy at L2-3 and L3-4 and a mildly degenerative disc at L5-S1 with mild
degenerative loss of both height and signal. He interpreted his findings as unchanged. This

7

report does not support Dr. Bonner’s conclusions that appellant’s employment incident
aggravated her underlying degenerative disc disease. Dr. Morgan found no change in her
degenerative condition following the employment incident. This report does not support
appellant’s continuing disability due to her accepted employment injury or Dr. Bonner’s
asserting that she sustained additional conditions as a result of her employment injury.
Dr. Der-Krikorian examined appellant and found that her neurological condition with
within normal limits with no sciatica and no motor, sensory, or reflex abnormalities. He
reviewed her March 10, 2010 MRI scan and found degenerative disc disease at L5-S1 consistent
with a left L5 radiculopathy. Appellant underwent an additional MRI scan on October 26, 2010
and Dr. Der-Krikorian reviewed this study on November 23, 2010. Dr. Der-Krikorian found that
her symptoms suggested an intermittent bilateral lumbar radicular involvement with no clear-cut
evidence of acute lumbar radiculopathy or herniated disc. This report does not support
appellant’s claim as he did not diagnose lumbar sprain and did not opine that an additional
condition resulted from her accepted employment injury. Dr. Der-Krikorian did not opine that
her degenerative disc disease or radiculopathy were due to her accepted employment injury.
Without medical opinion to evidence establish a causal relationship between the diagnosed
condition and the employment incident, this report does not establish continuing disability or
medical residuals resulting from either the accepted condition or from an additional employmentrelated condition.
On appeal, counsel argued that there was a conflict of medical opinion evidence between
Drs. Smith and Bonner. The Board finds that Dr. Bonner did not address any continuing
disability or residuals from the accepted condition of lumbar sprain/strain such that there is a
conflict of medical opinion on this issue. The Board further finds that he did not provide
sufficient medical opinion evidence to raise a conflict regarding any additional alleged condition
resulting from appellant’s accepted employment injury.
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 OWCP has met its burden of proof to terminate appellant’s wageloss and medical benefits due to her February 24, 2010 employment injury.

8

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2015
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1944
Issued: January 9, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from the July 3 and September 3,
2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish disability on or
after August 2, 2013 due to her accepted bilateral carpal tunnel syndrome; and (2) whether
appellant met her burden of proof to establish an occupational disease other than bilateral carpal
tunnel syndrome.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 2, 2013 appellant, then a 57-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she over time sustained an injury due to the
performance of her work duties over time. She indicated that she first became aware of her
claimed injury and its relationship to her work on August 2, 2013. In an accompanying
statement dated August 1, 2013, appellant asserted that she sustained injury to her neck, arms,
back, and hips due to her repetitive job duties which included opening and closing the doors on
her postal vehicle, casing mail, delivering mail, and pulling the parking brake of her postal
vehicle. Appellant stopped work on July 20, 2013.2
In an August 8, 2013 report, Dr. James Brown, an attending osteopath, stated that, over
the prior six months, appellant had experienced progressive pain in her neck, shoulders, and
wrists, numbness and tingling in both thumbs, numbness and tingling in her second and third
fingers, pain shooting down from her shoulders, and numbness and tingling from her shoulders
down to the hands (left more than right). He noted that upon examination appellant had a
positive Tinel’s sign in her left wrist and he diagnosed “suspect progressive degenerative
changes in the shoulders and hips bilaterally, and in the neck, probably with underlying disc
disease, progressive in the neck.” Dr. Brown indicated that appellant might have bilateral carpal
tunnel syndrome, left greater than right, and stated, “It is certainly possible that these symptoms
are caused by significant issues with work.”
In a November 21, 2013 decision, OWCP denied appellant’s claim for a work-related
occupational disease on the grounds that she had not submitted sufficient medical evidence in
support of her claim.
Appellant submitted the findings of November 19, 2013 electromyogram (EMG) and
nerve conduction velocity (NCV) testing which showed mild to moderate median nerve
compromise in both of her wrists. Magnetic resonance imaging (MRI) scan testing of
appellant’s low back, obtained on March 29, 2013, showed degenerative disc desiccation
narrowing at L4-5 and L5-S1. At both levels, there was a hyperintense signal annulus
compatible with fissure. MRI scan testing of appellant’s low back from January 16, 2007
showed mild disc protrusion at L4-5 and L5-S1 but did not denote possible fissure of the discs.
MRI scan testing of appellant’s neck, obtained on September 20, 2013 showed mild degenerative
changes between C3-4 and C6-7.
In an October 29, 2013 report, Dr. Brown diagnosed bilateral carpal tunnel syndrome and
indicated that appellant’s repetitive work duties caused this condition. He stated:
“I do believe that her work conditions have contributed to the unnatural
progression to her shoulder, hips, neck, arms, and hands. The repetitive motions
of getting in and out of the vehicle numerous times as she described, as well as
casing the mail, twisting, turning, repeatedly having to open and close the [postal
2

OWCP had previously accepted that, on October 9, 2007, appellant sustained a sacroiliac strain and
degeneration of lumbar intervertebral disc due to stepping out of her postal vehicle and turning to pick up mail.
Appellant received disability compensation from late 2007 to early 2009 due to these injuries.

2

vehicle], parking brake maneuvers, grasping, holding, carrying, [and] packaging
have contributed to the progression of the disc disease and also causing the carpal
tunnel issues with her hands and degenerative changes of her neck, as well as
progression beyond what would normally be expected of her lumbar spine disc
disease. These activities that she engaged in have both precipitated the injuries as
well as aggravated the preexisting one and caused acceleration of the normal
aging process of her back and neck.”3
In January 7, 2014 decisions, OWCP modified its November 21, 2013 decision to accept
that appellant sustained work-related bilateral carpal tunnel syndrome. It also found that
appellant had not established any other work-related occupational disease, such as to the neck or
back, because she had failed to submit rationalized medical evidence establishing such
conditions. OWCP noted that Dr. Brown did not explain how the diagnostic testing of record
showed that appellant’s mild degenerative disease of the neck and back had been further
aggravated by work factors.
On February 28, 2014 appellant filed a claim for compensation (Form CA-7) alleging that
she sustained disability from August 2, 2013 to February 22, 2014 due to her accepted bilateral
carpal tunnel syndrome condition.4
In a report dated March 17, 2014, Dr. Brown stated that appellant had ongoing long-term
issues dating back to 2007 with pain of the lumbar spine from injuries that she had sustained at
work.5 He indicated that, since that time, she had chronic ongoing back pain which radiated
down her left leg and noted that the pain was exacerbated by her work, which included having to
lift and carry heavy crates of mail, twisting in awkward positions, and driving in awkward
positions to distribute her mail on her rural route. Appellant had a subsequent MRI scan test in
2012 showing several annular fissures of her discs which constituted new findings from her prior
MRI scan tests. Dr. Brown stated:
“[Appellant] continues to have ongoing low back pain and generalized
discomfort, prohibiting her from doing the heavy lifting, twisting, bending which
are required duties for her employment and has kept her from being employed
with the postal service now. Also, to assist you with the filing of her claim and
documentation, is a new change and would correlate with her repetitive use and
duties that she has to do with her work. As I am sure you are well aware,
repetitive use injuries, chronic strains and tend[i]nitis, cannot be documented with
actual x-rays but do correlate with her symptoms, in addition to what she has
documented on the MRI [scan] and have been reproducible on her physical
exam[inations] with the pain chronically in the low back, hip area.”
3

In an October 7, 2013 report, Dr. Brown diagnosed degenerative joint disease and cervical disc disease of the
neck and suspected bilateral carpal tunnel syndrome.
4

Appellant later filed CA-7 forms claiming that she had work-related disability through August 29, 2014.

5

In another report dated March 17, 2014, Dr. Brown diagnosed positive bilateral carpal tunnel syndrome and
documented disc disease, including degenerative changes of the lumbar spine. In a January 16, 2014 report, he
diagnosed significant degenerative changes of the lumbar spine with repetitive use injuries and “carpal tunnel.”

3

In a July 3, 2014 decision, OWCP affirmed its January 7, 2014 decisions noting that
appellant had not submitted sufficient medical evidence to establish that she sustained an
additional work-related occupational disease with respect to her neck or back.
Thereafter, appellant submitted a May 16, 2014 form report from Dr. George T.
Hayes, Jr., an attending Board-certified orthopedic surgeon, who stated that appellant was
complaining of increasing symptoms in her neck, shoulders, and hands “while driving at work.”
Dr. Hayes placed a question mark in the box labeled “remain off work” and recommended that
she be referred to a neurosurgeon. In a June 24, 2014 report, he again placed a question mark in
the box labeled “remain off work” and diagnosed bilateral carpal tunnel syndrome.6
In a September 3, 2014 decision, OWCP determined that appellant had not met her
burden of proof to establish disability on or after August 2, 2013 due to her accepted bilateral
carpal tunnel syndrome. It indicated that appellant had not submitted a rationalized medical
opinion showing that she had disability on or after August 2, 2013 due to this work-related upper
extremity condition. OWCP also found that appellant had not established a work-related
occupational disease other than bilateral carpal tunnel syndrome because she had not submitted
rationalized medical evidence establishing such a condition.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of 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.7 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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.8
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.9

6

The record contains July 22 and August 27, 2014 duty status reports from a physician with an illegible signature.
The reports contain work restrictions such as continuously lifting up to 5 pounds and intermittently lifting up to 10
pounds, but the reports do not contain a clear opinion regarding which medical condition would necessitate such
work restrictions.
7

J.F., Docket No. 09-1061 (issued November 17, 2009).

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

9

W.D., Docket No. 09-658 (issued October 22, 2009).

4

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome due to her
repetitive work duties which included opening and closing the doors on her postal vehicle, casing
mail, delivering mail, and pulling the parking brake of her postal vehicle. Appellant stopped
work on July 20, 2013 and filed claims alleging disability between August 2, 2013 and
August 29, 2014 due to her accepted bilateral carpal tunnel syndrome condition.
The Board finds that appellant failed to meet her burden of proof to establish disability on
or after August 2, 2013 due to her accepted bilateral carpal tunnel syndrome. Appellant
submitted a number of reports dated between August 2013 and March 2014 of Dr. Brown, an
attending osteopath. Although the reports of Dr. Brown served as the basis for the acceptance of
appellant’s bilateral carpal tunnel syndrome, Dr. Brown did not provide a clear opinion in any of
his reports that she sustained disability due to the accepted bilateral carpal tunnel syndrome for
any specific period on or after August 2, 2013.
In a May 16, 2014 form report, Dr. Hayes, an attending Board-certified orthopedic
surgeon, placed a question mark in the box labeled “remain off work until” and noted that she
was complaining of increasing symptoms in her neck, shoulders, and hands.10 In a June 24, 2014
report, he again placed a question mark in the box labeled “remain off work until” and diagnosed
bilateral carpal tunnel syndrome. However, the submission of these reports would not establish
that appellant had disability on or after August 2, 2013 due to her accepted bilateral carpal tunnel
syndrome. Although Dr. Hayes indicated that appellant was disabled for an unspecified period,
he did not provide a clear opinion regarding what medical condition caused such disability.11
Appellant did not submit any rationalized medical evidence showing that she had
disability on or after August 2, 2013 due to her accepted bilateral carpal tunnel syndrome. She
may submit new evidence or argument with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee who claims benefits under FECA has the burden of establishing the
essential elements of his or her claim.12 The claimant has the burden of establishing by the
weight of reliable, probative and substantial evidence that a given occupational disease condition
for which compensation is sought is causally related to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
10

Dr. Hayes indicated that appellant reported increased complaints while driving at work, but it is unclear
whether he was aware that appellant had not worked for the employing establishment since July 2013.
11

The record contains July 22 and August 27, 2014 duty status reports from a physician with an illegible
signature. The reports contain work restrictions such as continuously lifting up to five pounds and intermittently
lifting up to 10 pounds, but the reports do not contain a clear opinion regarding which medical condition would
necessitate such work restrictions.
12

Ruthie Evans, 41 ECAB 416, 423-24 (1990); Donald R. Vanlehn, 40 ECAB 1237, 1238 (1989).

5

upon a complete and accurate factual and medical background, establishing causal relationship.13
However, it is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14
ANALYSIS -- ISSUE 2
The Board notes that while none of the reports of Dr. Brown are completely rationalized,
they are consistent in indicating that appellant sustained an occupational disease other than
bilateral carpal tunnel syndrome, and are not contradicted by any substantial medical or factual
evidence of record. Therefore, while the reports are not sufficient to meet appellant’s burden of
proof to establish her claim, they are sufficient to require OWCP to further develop the medical
evidence and the case record.15
In the October 29, 2013 report, Dr. Brown noted that appellant’s repetitive motions of
getting in and out of her vehicle numerous times, as well as casing the mail, twisting, turning,
repeatedly having to open and the close the postal vehicle, engaging in parking brake maneuvers,
grasping, holding, carrying, and packaging had contributed to the progression of the disc disease
in her neck and low back. He stated, “These activities that she engaged in have both precipitated
the injuries as well as aggravated the preexisting one and caused acceleration of the normal aging
process of her back and neck.”
In a report dated March 17, 2014, Dr. Brown stated that appellant had chronic ongoing
back pain which radiated down her left leg and posited that the pain was exacerbated by her
work, which included having to lift and carry heavy crates of mail, twisting in awkward
positions, and driving in awkward positions to distribute her mail on her rural route. He stated
that appellant had a subsequent MRI scan test in 2012 showing several annular fissures of her
discs which constituted new findings from her prior MRI scan tests.16 Dr. Brown noted that
these changes in the diagnostic testing correlated with the repetitive duties of appellant’s work
and stated, “As I am sure you are well aware, repetitive use injuries, chronic strains and
tend[i]nitis, cannot be documented with actual x-rays but do correlate with her symptoms, in
addition to what she has documented on the MRI [scan] and have been reproducible on her
physical exam[inations] with the pain chronically in the low back, hip area.”
These reports of Dr. Brown reflect his examination and understanding of appellant’s
work duties and provide specific duties that support additional work-related occupational
13

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

14

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

15

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

16

MRI scan testing of appellant’s low back, obtained on March 29, 2013, showed degenerative disc desiccation
narrowing at L4-5 and L5-S1. At both levels, there was a hyperintense signal annulus compatible with fissure. MRI
scan testing of appellant’s low back from January 16, 2007 showed mild disc protrusion at L4-5 and L5-S1 but did
not denote possible fissure of the discs. MRI scan testing of appellant’s neck, obtained on September 20, 2013
showed mild degenerative changes between C3-4 and C6-7.

6

conditions other than bilateral carpal tunnel syndrome, particularly with regard to her neck and
low back. While not fully rationalized, they are sufficient to require remanding the case to
OWCP for further development of this matter. After carrying out this development, OWCP shall
issue an appropriate decision regarding the question of whether appellant sustained a workrelated occupational disease other than bilateral carpal tunnel syndrome.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
disability on or after August 2, 2013 due to her accepted bilateral carpal tunnel syndrome. The
Board further finds that the case is not in posture for decision regarding whether appellant met
her burden of proof to establish that she sustained an occupational disease other than bilateral
carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the finding that appellant did not
meet her burden of proof to establish that she had disability on or after August 2, 2013 due to her
accepted bilateral carpal tunnel syndrome. The July 3 and September 3, 2014 decisions of
OWCP are set aside with respect to the finding that appellant did not meet her burden of proof to
establish that she sustained an occupational disease other than bilateral carpal tunnel syndrome
and the case is remanded to OWCP for further proceedings consistent with this decision of the
Board.
Issued: January 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7