United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
Sheilah F. McCarthy, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1057
Issued: September 8, 2017

Case Submitted on the Record

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

JURISDICTION
On April 19, 2017 appellant, through counsel, filed a timely appeal from an October 21,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days elapsed from the last merit decision dated September 7, 2016 to the filing of this

1

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

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 and eighty days from OWCP’s October 21, 2016 decision was April 19, 2017. Since
using April 20, 2017, 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 April 19, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 19, 2015 appellant, then a 61-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 18, 2015 he strained his left leg and
left knee when he tripped on a railroad tie in the performance of duty. He stopped work on
October 18, 2015.
In an October 5, 2015 report, Dr. Philippe S. Cote, a Board-certified orthopedic surgeon,
noted that appellant underwent a total left knee replacement in April 2014 and sustained another
left knee injury during a motorcycle accident one month ago. He provided physical examination
findings and reported that a left knee magnetic resonance imaging (MRI) scan showed a left total
knee arthroplasty and moderate volume joint effusion with synovitis. Dr. Cote diagnosed status
post left total knee arthroplasty and left knee pain, status post fall. He concluded that appellant
had left knee pain following a recent traumatic injury status post total knee arthroplasty.
Following the October 18, 2015 incident, appellant was initially treated in the emergency
room. In hospital records dated October 18, 2015, Dr. Adam Janicki, an emergency medicine
physician, related appellant’s complaints of sudden onset of left knee pain after a fall at work.
Physical examination of appellant’s left knee showed decreased range of motion and no obvious
swelling. Dr. Janicki diagnosed left knee effusion and recommended that appellant follow-up
with his primary care provider.
Dr. Cote indicated in an October 23, 2015 progress note that appellant had been doing
well following his left knee total arthroplasty until October 18, 2015 when he tripped at work
and injured his left knee. He conducted an examination and opined that appellant clearly had
some soft tissue injury given the amount of soft tissue swelling. Dr. Cote provided a work status
note, which indicated that appellant was disabled from work for two weeks.
By letter dated November 16, 2015, OWCP informed appellant that his claim was
initially approved as a minor injury, but it was being reopened because he had not yet returned to
work. It advised him that the evidence submitted was insufficient to establish his claim. OWCP
requested that appellant respond to an attached questionnaire in order to substantiate that the
October 18, 2015 incident occurred as alleged and provide additional medical evidence to
establish a diagnosed condition causally related to the alleged employment incident. Appellant
was afforded 30 days to submit additional evidence.

3

5 U.S.C. § 8101 et seq.

2

Appellant provided an October 20, 2015 witness statement from appellant’s coworker,
who explained that on October 18, 2015 he heard a loud disturbance and found appellant on the
floor when he went to the front section of the office.
Dr. Cote continued to treat appellant. In a November 6, 2015 progress note, he related
that appellant still had significant swelling and effusion of his left knee. Dr. Cote noted that
appellant remained totally disabled from work. In a December 15, 2015 attending physician’s
report (Form CA-20), he related that on October 18, 2015 appellant injured his left knee.
Dr. Cote reported examination findings of swelling and effusion. He checked a box marked
“yes” indicating that appellant’s condition was caused or aggravated when he tripped at work.
Appellant filed various claims for wage-loss compensation (Form CA-7) for the period
December 3, 2015 to January 8, 2016.
On December 17, 2015 OWCP received appellant’s response to its development letter.
Appellant explained that on October 18, 2015 he turned to put papers in his file when he tripped
on a turn table at work. He noted that his coworker was present in the office. Appellant clarified
that he had no disability or symptoms before the alleged employment injury.
OWCP denied appellant’s claim by decision dated December 17, 2015. It determined
that the factual evidence of record was insufficient to establish that the October 18, 2015 incident
occurred as alleged. OWCP also found that the medical evidence of record failed to establish a
diagnosed medical condition causally related to the alleged employment incident.
On December 22, 2015 appellant requested a hearing before an OWCP hearing
representative. A hearing was held on June 28, 2016. Appellant’s representative at the time
argued that witness statements confirmed that on October 18, 2015 appellant fell on the floor and
was transported to the emergency room. Appellant’s representative clarified that, although
appellant had prior left knee issues, those issues had resolved, and appellant was doing well
following his left knee total replacement until the October 18, 2015 employment injury.
Appellant provided photographs of the office where the alleged October 18, 2015 incident
occurred and described in detail how he tripped and fell in the performance of duty. OWCP
continued to receive medical evidence.
OWCP received a September 18, 2015 report by Dr. Cote who related that on
September 8, 2015 appellant was riding his motorcycle when he hyperflexed his left knee. Upon
examination of appellant’s left knee, Dr. Cote noted 2+ effusion of the knee and point
tenderness. He recommended a left knee MRI scan. Appellant also provided a time sheet
printout for October 18, 2015.
Appellant underwent a left knee MRI scan by Dr. Krishanu B. Gupta, a diagnostic
radiologist, who indicated in a September 29, 2015 report that appellant had left total knee
arthroplasty, intact quadriceps tendon insertion, and moderate volume joint effusion with
synovitis.
In a March 23, 2016 report, Dr. Cote discussed appellant’s history of his left knee
symptoms and related that on October 18, 2015 he injured his left knee again when he tripped at
work. He indicated that he examined appellant on October 23, 2015 and noted that it was clear
3

that appellant had sustained a significant soft tissue injury. Dr. Cote described the medical
treatment he provided for appellant. He opined that appellant sustained a new injury to his left
knee. Dr. Cote explained that appellant’s injury was an injury to the iliotibial band, and not to
the knee itself. He reported that the new injury was unrelated to his prior issues with left knee
arthritis and subsequent left knee replacement.
Appellant submitted various handwritten witness statements dated June 23, 2016, which
described how the floor in the front office of the employing establishment had a metal beam that
was slightly raised above the floor that required being grinded down and covered with a floor
leveler.
By decision dated September 7, 2016, an OWCP hearing representative affirmed the
December 17, 2015 decision with modification. She accepted that the October 18, 2015 incident
occurred as alleged, but found that the medical evidence of record was insufficient to establish a
diagnosed left knee condition causally related to the accepted incident.
On September 24, 2016 appellant requested reconsideration. He indicated that he was
providing new medical evidence from Dr. Cote, which affirmed a causal relationship between
the October 18, 2015 employment injury and his left knee condition.
In a September 14, 2016 addendum report, Dr. Cote clarified that, although appellant had
a left knee injury after a motorcycle accident, he was in a “normal state of good health when he
tripped on a railroad track that was batted in the floor.” He related that this caused appellant to
twist and fall on his left knee, which caused a new injury on October 18, 2015.
By decision dated October 21, 2016, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a). It found that Dr. Cote’s September 14, 2016 addendum report
was cumulative and substantially similar to his previously submitted report.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

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A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.6 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.7 If the request is timely but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
In its September 7, 2016 decision, OWCP again denied appellant’s traumatic injury
claim, finding that the medical evidence of record failed to establish that his left knee condition
was causally related to the accepted October 18, 2015 employment incident. Appellant
subsequently requested reconsideration and submitted additional medical evidence.
The Board finds that OWCP properly declined to reopen appellant’s claim for further
consideration of the merits, under 5 U.S.C. § 8128(a).
Appellant has not shown that OWCP erroneously applied or interpreted a specific point
of law; appellant has not advanced a relevant legal argument not previously considered by
OWCP; and appellant has not submitted relevant and pertinent new evidence not previously
considered by OWCP.
In support of his reconsideration request, appellant submitted a September 14, 2016
addendum report by Dr. Cote. Dr. Cote reiterated that appellant sustained a new injury on
October 18, 2015 when he twisted and fell on his left knee at work. He further explained that,
although appellant had sustained a previous left knee injury, he was in a “normal state of good
health when he tripped on a railroad track that was batted in the floor.” The Board notes that
Dr. Cote merely repeated his opinion from his March 23, 2016 report that appellant sustained a
new left knee injury on October 18, 2015. The Board has held that the submission of evidence
which duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case.9
On appeal counsel contends that OWCP incorrectly refused to review the merits of
appellant’s case because Dr. Cote’s September 14, 2016 addendum report directly addressed the
issue of causal relationship, which OWCP’s hearing representative found was lacking. As
explained above, however, Dr. Cote’s opinion on causal relationship in the new September 14,
2016 report merely duplicates his opinion found in the March 23, 2016 report, which was
previously reviewed by OWCP.

6

Id. at § 10.607(a).

7

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

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

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The Board finds, therefore, that appellant has not met any of the regulatory requirements
and OWCP properly declined his request for reconsideration of the merits of his claim under 5
U.S.C. § 8128(a).10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Altoona, PA, Employer
__________________________________________

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

Docket No. 10-1181
Issued: January 25, 2011

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant filed a timely appeal from the February 19, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 the Office properly determined that appellant received an
overpayment for the period September 21 to October 24, 2009, in the amount of $5,115.25; and
(2) whether the Office properly determined that appellant was at fault in the creation of the
overpayment; thus precluding waiver of recovery.
FACTUAL HISTORY
On March 12, 2008 appellant, then a 35-year-old physical therapist, twisted his left knee
while assisting a patient at work. The Office accepted his claim for tear of the medial meniscus
of the left knee and authorized surgery. Appellant underwent arthroscopic surgery on June 26,

2008 and was paid compensation benefits until he returned to light duty on July 26, 2008. The
Office authorized additional surgery on the left knee. On June 4, 2009 appellant underwent
arthroscopy, arthroscopic release and arthroscopic resection of plica and chondroplasty of the left
knee. He filed various (Forms CA-7) for disability payment and the Office paid compensation
benefits until August 2, 2009 when he was placed on the periodic compensation rolls. Appellant
returned to work on September 21, 2009, yet the record reflects periodic roll payments to him
from August 2 to October 24, 2009. He continued to file CA-7 forms requesting compensation
payments through September 20, 2009. On the September 21, 2009 form claiming compensation
for the period September 13 to 20, 2009, the employing establishment noted that he returned to a
light-duty assignment on September 21, 2009.
In a letter dated August 4, 2009, the Office advised appellant that compensation benefits
for total disability were only payable while he could not perform work because of his injury.
Appellant was advised to avoid an overpayment by notifying the Office immediately when he
returned to work. The Office informed him that each compensation payment showed the period
for which payment is made and that, if he worked for any portion of this period, he was to return
the payment to the office even if he had already advised the Office that he was working.
A review by the Office confirmed that appellant had returned to full-time duty work on
September 21, 2009 and issued a preliminary determination of overpayment by letter dated
December 1, 2009 finding that he had received an overpayment for the period September 21 to
October 24, 2009, in the amount of $5,115.25. It found that he was at fault in creating the
overpayment because he knew or should have known that he received an incorrect payment
when he was paid his salary by the employing establishment but received compensation from the
Office after he returned to work. The Office advised appellant that he had 30 days in which to
submit evidence or argument if he disagreed with the preliminary determination.
In the preliminary finding of overpayment, the Office explained that a computer printout
of the Office’s compensation payment history showed that appellant received compensation in
the amount of $8,425.12 covering the periods August 30 to September 26, 2009 and
September 27 to October 24, 2009. It explained that for a 28-day periodic rolls cycle, appellant
was entitled to receive a gross payment of $4,382.70, less deductions for health insurance,
$170.14, for a net payment of $4,212.56. The Office noted that he received two payments of 28
calendar days for the periods August 20 to September 26 and September 27 to October 24, 2009
in the amount of $4,212.56 for a total of $8,425.12. It noted that appellant should have received
compensation for the period August 30 to September 20, 2009, which was 22 calendar days for a
gross payment of $3,443.55, less deductions for health benefits, for a net payment of $3,309.87.
The Office found the difference between the amount paid ($8,425.12) and the amount owed
($3,309.87) resulted in an overpayment in the amount of $5,115.25 as he had returned to work on
September 21, 2009.
On December 30, 2009 the Office received an undated overpayment recovery
questionnaire. Appellant did not complete the financial portion but submitted a without fault
statement. He stated that he “knew” that his employer was notified of his return to work date,
and it notified the Office. Appellant advised that the overpayment was not his fault as he
notified the Office. He alleged that the fact that the overpayment was paid in error should not be
sufficient to attribute him with “fault” as he timely advised the Office of his return to work.

2

By decision dated February 19, 2010, the Office finalized its determination that appellant
received an overpayment of compensation in the amount of $5,115.25. It determined that he was
at fault as he accepted payments he knew or should have known to be incorrect because he
received wage-loss compensation payments after returning to full-time work. Appellant was
advised to either forward a check for the entire amount of the overpayment or to contact the
Office to make arrangements for repayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.1 The Office regulations, at 20 C.F.R.
§ 10.500(a), provides that benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him or she from
earning the wages earned before the work-related injury.2 A claimant is not entitled to receive
temporary total disability and actual earnings for the same period. Office procedures provide
that an overpayment in compensation is created when a claimant returns to work but continues to
receive wage-loss compensation.3
ANALYSIS -- ISSUE 1
The record establishes that appellant returned to work without wage loss on
September 21, 2009, but received compensation for temporary total disability until
October 24, 2009. As appellant returned to work and had no entitlement to compensation for this
period, the receipt of compensation from September 21 to October 24, 2009 caused an
overpayment of compensation to him. He does not dispute the amount of overpayment. Any
compensation paid for total wage loss subsequent to the date of return to work should be
declared an overpayment.4 The Board will affirm the Office’s February 19, 2010 decision on the
issue of fact of overpayment.
In calculating the overpayment, the Office properly determined that appellant received
total compensation in the amount of $8,425.12 from August 30 to October 24, 2009. It explained
that he received two compensation payments in the amount of $4,212.56 for each 28-day period
which represented $8,425.12 in compensation. The Office determined that for the period
August 30 to September 20, 2009, appellant was entitled to a net payment of $3,309.87. It found
the difference between the amount paid and the amount owed resulted in an overpayment in the
amount of $5,115.25 as he had returned to full-time work on September 21, 2009.
1

5 U.S.C. § 8116(a).

2

20 C.F.R. § 10.500(a).

3

L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).
4

Id.

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LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he receives
from the Office are proper. The recipient must show good faith and exercise a high degree of
care in reporting events which may affect entitlement to, or the amount of, benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.6
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that he accepted a payment which he knew or should have known to be
incorrect. In order for it to establish that he was at fault in creating the overpayment, the Office
must show that at the time he accepted the compensation checks in question, he knew or should
have known that the payment was incorrect.7
The Board finds that, at the time appellant received the compensation in question, he
knew or should have known that the payments were incorrect. The record reflects that appellant
returned to work on September 21, 2009. By letter dated, August 4, 2009 the Office informed
him that he must return checks received after he returned to work in order to avoid an
overpayment of compensation. As appellant was advised by the Office of steps to take to avoid
an overpayment and as each payment contains notification of the period covered by each
compensation check, he should have been reasonably aware that he could not receive wage-loss
compensation for a period in which he had also returned to work.8 When he completed the
portion of the overpayment questionnaire pertaining to fault, he indicated that he “knew” that his
employer was notified of his return to work date and he knew that it had notified the Office.
5

20 C.F.R. § 10.433(a).

6

Id at § 10.433(b).

7

Id. at § 10.430(a) provides that the Office includes on each periodic check a clear indication of the period for
which payment is being made. A form is sent to the recipient with each supplemental check which states the period
for which payment is being made. Id. at § 10.430(b) notes that, by these means, the Office puts the recipient on
notice that a payment was made and the amount of the payment. See J.R., 60 ECAB __ (Docket No. 08-1107,
issued June 15, 2009).
8

See id.

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This is supported by the September 21, 2009 Form CA-7 in which appellant claimed
compensation only from September 13 to 20, 2009 and on which the employer noted that he
returned to work on September 21, 2009. By claiming compensation only for the days that he
did not work, appellant shows he was aware that he was not entitled to compensation after he
returned to work. The fact that appellant properly did not request compensation after returning
to work is not enough though to defeat a finding of fault. He is also obligated not to accept any
payment he receives after returning to work. Here, appellant received payments, clearly marked
for periods following his return to work. On appeal, he does not contest the amount of the
overpayment but disputes the Office’s finding that he was at fault in creating the overpayment.
Appellant asserts that the Office was at fault for not processing the September 21, 2009 Form
CA-7. The fact that the Office may have erred in making the overpayment does not by itself
relieve the individual who received the overpayment from fault.9
The Board finds that appellant knew or should have known that he was not entitled to
receive the additional compensation in the amount of $5,115.25 for the period September 21 to
October 24, 2009. As appellant was at fault in the matter of the overpayment, the overpayment
of compensation cannot be waived.10
CONCLUSION
The Board finds that the Office properly determined that appellant received a $5,115.25
overpayment of compensation for the period September 21 to October 24, 2009. The Board
further finds that he was at fault in the creation of the overpayment and thus not entitled to
waiver.

9

Supra note 5.

10

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to review of those cases where
the Office seeks recovery from continuing compensation benefits under the Act. See Terry A. Keister, 56 ECAB
559 (2005); Albert Pineiro, 51 ECAB 310 (2000). As the Office’s decision did not direct recovery from continuing
compensation, the Board lacks jurisdiction to review the recovery of the overpayment.

5

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 14-1833
Issued: February 10, 2015

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant filed a timely appeal from an August 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish disability for the
period December 14 through 27, 2013 causally related to her employment injuries.
On appeal, appellant contends that she is living with daily pain and requests a referral to a
neurosurgeon.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 5, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 53-year-old clerk, sustained lumbar, thoracic, and
cervical strains on July 6, 2011 as a result of pulling trays of mail in the performance of duty.
Appellant filed a claim for compensation (Form CA-7) for the period December 14
through 27, 2013.
In a January 3, 2014 letter, OWCP requested additional medical evidence establishing
appellant’s disability for work during the period claimed and afforded her 30 days to respond to
its inquiries.
Appellant submitted reports dated December 18, 2013 through March 27, 2014 from
Dr. Mervet Saleh, a Board-certified anesthesiologist, who diagnosed thoracic, lumbar, and neck
strains. On December 18, 2013 Dr. Saleh indicated that appellant was being treated for “chronic
pain” and took her off work for the period December 18 through 27, 2013.
By decision dated April 8, 2014, OWCP denied appellant’s claim for disability for the
period December 14 through 27, 2013 on the basis that the medical evidence submitted was not
sufficient to support disability due to the employment injuries.
On April 29, 2014 appellant requested reconsideration and submitted an April 24,
narrative statement indicating that her back condition was debilitating and alleged that
injuries were one of the leading causes of job-related disability in the United States.
indicated that Dr. Saleh reported a December 2012 disc injury and that she also suffered
damage to the lumbar and sacral disc at L5-S1 in her lower back.

2014
back
She
from

In a January 27, 2014 report, Dr. Saleh stated that she had been treating appellant on a
monthly basis since May 3, 2012 for her chronic pain that developed as a result of a July 6, 2011
employment injury. She noted that an August 30, 2012 electromyography (EMG) demonstrated
a prolonged H-tibial response on the right side which could have suggested right S1
radiculopathy. A magnetic resonance imaging (MRI) scan study dated December 6, 2012
revealed at the L5-S1 level facet arthropathy bilaterally with mild disc bulge across the central
disc margin. Dr. Saleh took appellant off work until February 9, 2014.
In progress reports dated April 2 through July 23, 2014, Dr. Saleh reiterated her
diagnoses and medical opinions.
By decision dated August 5, 2014, OWCP denied modification of its April 8, 2014
decision.3

3

On September 4, 2014 appellant filed a claim for compensation (Form CA-7) for the period August 12
to 22, 2014. By decision dated December 3, 2014, OWCP denied the claim on the basis that the medical evidence
submitted was insufficient to establish that appellant was disabled for the period claimed. This decision is not
currently before the Board. See 20 C.F.R. § 501.3.

2

LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.7 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative, and substantial
medical evidence.8
Disability is not synonymous with physical impairment, which may or may not result in
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not established total disability for the period
December 14 through 27, 2013 causally related to her employment injuries. While OWCP
accepted that appellant sustained lumbar, thoracic, and cervical strains, she has the burden to
establish through medical evidence that she was disabled during the claimed time periods and
that her disability was causally related to her accepted injuries.10 The Board finds that appellant
submitted no such rationalized medical evidence explaining how the accepted lumbar, thoracic,
and cervical strains caused her to be disabled for work for the period December 14
through 27, 2013.

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

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

7

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

8

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

9

Id.

10

See supra notes 7 and 8. See also V.P., Docket No. 09-337 (issued August 4, 2009).

3

In her reports, Dr. Saleh diagnosed thoracic, lumbar, and neck strains. On December 18,
2013 she indicated that appellant was being treated for “chronic pain” and took [appellant] off
work for the period December 18 through 27, 2013. In her January 27, 2014 report, Dr. Saleh
stated that she had been treating appellant on a monthly basis since May 3, 2012 for her chronic
pain that developed as a result of a July 6, 2011 employment injury. She noted that an
August 30, 2012 EMG demonstrated a prolonged H-tibial response on the right side which could
have suggested right S1 radiculopathy. A December 6, 2012 MRI scan study revealed at the L5S1 level bilaterally facet arthropathy with mild disc bulge across the central disc margin.
Dr. Saleh took appellant off work until February 9, 2014. The Board finds that Dr. Saleh failed
to provide a probative medical opinion regarding whether appellant was disabled on the dates at
issue due to her accepted lumbar, thoracic, and cervical strains. Therefore, appellant has not met
her burden of proof to establish total disability due to her employment injuries for the period
claimed.
In an April 24, 2014 narrative statement, appellant indicated that her back condition was
debilitating and alleged that back injuries were one of the leading causes of job-related disability
in the United States. She indicated that Dr. Saleh reported a December 2012 disc injury and that
she also suffered from damage to the lumbar and sacral disc at L5-S1 in her lower back. On
appeal, appellant contends that she is living with daily pain and requests a referral to a
neurosurgeon. OWCP, however, has not accepted a disc injury in this case. Thus, the Board
finds that appellant’s arguments are irrelevant to the issue on appeal.
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled for the period December 14 through 27, 2013 causally related to the accepted
employment injuries. Thus, she has not met her burden of proof to establish that she is entitled
to compensation for any disability.
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 that she was
disabled for the period December 14 through 27, 2013 causally related to her employment
injuries.

4

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


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

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Appearances:
Appellant, pro se

Docket No. 11-690
Issued: October 13, 2011

Case submitted on the record

Office of Solicitor, for the Director

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

JURISDICTION
On January 25, 2011 appellant filed a timely appeal from a September 2, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) affirming the termination of her
compensation benefits, and an October 14, 2010 nonmerit decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 OWCP properly terminated appellant’s wage loss and
medical compensation benefits effective June 7, 2010 on the grounds that accepted right shoulder
injuries had ceased without residuals; (2) whether appellant established continuing disability on
and after June 7, 2010; and (3) whether OWCP properly denied appellant’s request for
reconsideration.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant asserts that OWCP wrongfully failed to consider new, relevant
medical evidence submitted on reconsideration. She also contends that an impartial medical
examiner’s opinion was based on an incomplete history as OWCP did not include 1996 imaging
studies in the statement of accepted facts.
FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case. By decision dated
November 3, 1998,2 the Board affirmed OWCP’s November 27, 1997 decision denying her
request for an oral hearing and reversed OWCP’s April 21 and August 27, 1997, February 23 and
March 30, 1998 decisions affirming an August 9, 1996 decision terminating appellant’s wageloss compensation benefits on the grounds she refused an offer of suitable work. The Board
found that OWCP did not establish that the offered position was suitable work under 5 U.S.C.
§ 8106(c)(2), as there was no contemporaneous medical evidence supporting that appellant could
perform the physical requirements of the offered position. The law and the facts of the case as
set forth in the Board’s prior decision and order are incorporated by reference.
OWCP accepted that, on October 26, 1988, appellant, then a 42-year-old distribution
clerk, sustained a herniated nucleus pulposus at L4-5 and a spinal subluxation from C5 to T3
when she lifted a sack of mail. Appellant had undergone five back injuries from 1977 to
January 7, 1988 while working at the employing establishment. She stopped work on
October 26, 2008 and did not return. Appellant received wage-loss compensation. A June 19,
1989 lumbar magnetic resonance imaging (MRI) scan and August 28, 1989 lumbar myelogram
showed a small ventral herniation at L4-5 with minor compression of the thecal sac and right L5
nerve root. Appellant sustained musculoskeletal back pain due to a March 24, 1995
nonoccupational motor vehicle accident. A June 21, 1996 lumbar MRI scan showed a minimal
L5-S1 disc bulge with mild degenerative changes at L4-5 and L5-S1.
OWCP obtained additional medical evidence during the pendency of the prior appeal. In
an August 11, 1998 report, Dr. Merton B. Shure, a second opinion physician,3 noted L5-S1
tenderness on examination. He opined that appellant had fully recovered.
In an April 5, 1999 report, Dr. Clifford W. Roberson, an attending orthopedic surgeon,
found a good range of lumbar motion, a normal gait, a normal neurologic examination of both
lower extremities, negative straight leg raising tests bilaterally, no muscular weakness or
atrophy, and a “[g]eneralized decreased sensation to pinprick.” He diagnosed a herniated L4-5
disc by previous MRI scan and chronic lumbosacral strain. Dr. Roberson found that appellant
had attained maximum medical improvement and was totally and permanently disabled for
work.4

2

Martha A. McConnell, 50 ECAB 129 (1998).

3

Dr. Shure’s field of specialty is not of record.

4

There is no medical evidence of record dated between May 1999 and June 2003. Appellant submitted July 9,
2003 unsigned hospital discharge instructions for “back pain.”

2

In an April 13, 2004 report, Dr. Simon E. Portee, an attending internist, related
appellant’s complaints of lumbar pain, with weakness and numbness in both legs. He diagnosed
degenerative disc disease, a herniated nucleus pulposus, lumbar pain and intervertebral disc
displacement. Dr. Portee found appellant totally and permanently disabled for work.
On May 25, 2007 OWCP obtained a second opinion from Dr. Alexander N. Doman, a
Board-certified orthopedic surgeon. A copy of the medical record and statement of accepted
facts were provided for his review. Dr. Doman related appellant’s account of pain in all
extremities and nonanatomic stocking anesthesia in the right leg. On examination, he found
lumbosacral tenderness to palpation, normal lower extremity reflexes, normal sensation, and no
muscular atrophy or weakness. Dr. Doman stated that spinal x-rays were normal. He opined
that appellant was malingering. Dr. Doman found that the L4-5 disc herniation had “resolved as
documented both on the physical examination and … the 1996 MRI scan.” He attributed
appellant’s symptoms to preexisting degenerative lumbar changes. Dr. Doman released
appellant to full duty as a distribution clerk.
On June 22, 2007 OWCP found a conflict of medical opinion between Dr. Doman, for
the government, and Dr. Portee, for appellant, regarding the nature and extent of any injuryrelated residuals. To resolve this conflict, OWCP selected Dr. Walter C. Edwards, a Boardcertified orthopedic surgeon, as impartial medical examiner. OWCP provided a copy of the
medical record and a statement of accepted facts for his review. In an August 8, 2007 report,
Dr. Edwards provided a history of injury and treatment, noting the development of neck pain
with upper extremity symptoms in 2005. On examination, he found normal gait, a full range of
lumbar motion, normal reflexes in the extremities and a normal sensory examination.
Dr. Edwards diagnosed “[h]istory of back and neck injury and disability” without any current
abnormal findings. In an August 13, 2007 report, Dr. Edwards stated that the accepted
conditions had resolved without residuals, and that her current condition was due to the
progression of preexisting degenerative disc disease. He found appellant able to perform
sedentary to light-duty work with lifting limited to 25 pounds.
By notice dated April 29, 2010, OWCP advised appellant that it proposed to terminate
her wage loss and medical compensation benefits on the grounds that the accepted lumbar injury
had ceased without residuals. It accorded Dr. Edwards the weight of the medical evidence as the
impartial medical examiner.5 OWCP allowed appellant 30 days to submit additional evidence.
Appellant did not submit additional evidence prior to June 8, 2010.
By decision dated June 8, 2010, OWCP terminated appellant’s wage loss and medical
compensation benefits effective June 7, 2010 on the grounds that the accepted herniated L4-5
disc had resolved without residuals.
In a July 6, 2010 letter, appellant requested reconsideration. She submitted two reports
from Dr. Derron A. Jones, an attending Board-certified physiatrist. In a July 8, 2010 report,
5

On its face, page four of the April 29, 2010 notice referred to Dr. Doman as the impartial medical examiner.
However, from the detailed discussion of Dr. Edwards’ opinion that preceded this reference, the characterization of
Dr. Doman as the impartial medical examiner appears to be a nondispositive typographical error.

3

Dr. Jones noted appellant’s complaints of severe chronic back pain beginning with a
December 1987 injury. He related appellant’s account of muscle weakness, balance problems
and bladder incontinence. On examination, Dr. Jones observed a normal gait, normal lower
extremity reflexes, no tenderness to lumbar palpation, normal strength and muscle tone in both
legs and nonanatomic hypoesthesia in the right leg. He diagnosed lumbosacral spondylosis
without myelopathy and lumbar facet pain. In a July 22, 2010 report, Dr. Jones noted no
changes from the prior examination. He diagnosed limb pain, cervical facet pain and cervical
spondylosis without myelopathy.
By decision dated September 2, 2010, OWCP denied modification of its previous
decision. It found that Dr. Jones did not find any objective residuals of the accepted injuries or
explain why the conditions he newly diagnosed were related to those injuries. OWCP found that
Dr. Edwards’ opinion continued to represent the weight of the medical evidence.
In September 9 and 13, 2010 letters, appellant requested reconsideration. She contended
that Dr. Doman failed to report her lumbar spasms, and that Dr. Edwards did not explain how the
accepted L4-5 disc herniation resolved when it was still visible on imaging studies.
By decision dated October 14, 2010, OWCP denied reconsideration on the grounds that
appellant’s September 9 and 13, 2010 letters were irrelevant to the claim. It noted that the
critical issue at the time of the last merit decision in the case was the presence of continuing
injury-related residuals, a medical question requiring resolution by medical evidence. As
appellant’s letters did not constitute medical evidence, they were irrelevant to the claim and
insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability compensation.8 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.9 OWCP’s burden includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.10

6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

Roger G. Payne, 55 ECAB 535 (2004).

9

Pamela K. Guesford, 53 ECAB 726 (2002).

10

Id.

4

Section 8123(a) of FECA provides that, when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.11 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.12 The impartial medical specialist’s report must actually fulfill the purpose for which
it was intended; it must resolve the conflict in medical opinion. An impartial medical specialist’s
report is entitled to greater weight than other evidence of record as long as the conclusion is not
vague, speculative or equivocal and is supported by substantial medical reasoning.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a herniated L4-5 disc and a spinal subluxation
from C5 to T3. Appellant remained off work from October 26, 1988 onward. On August 1,
1998 OWCP obtained a second opinion from Dr. Shure finding that the accepted conditions had
ceased without residuals and she could resume full duty. Appellant then submitted an April 5,
1999 report from Dr. Roberson, an attending orthopedic surgeon, finding her totally and
permanently disabled for work although her examination was objectively normal. Dr. Portee, an
attending internist, opined on April 13, 2004 that appellant was totally and permanently disabled
for work due to the accepted herniated disc. OWCP then obtained a second opinion from
Dr. Doman, a Board-certified orthopedic surgeon, who opined on May 25, 2007 that the accepted
injuries had resolved. It found a conflict between Dr. Portee and Dr. Doman, and selected
Dr. Edwards, a Board-certified orthopedic surgeon, as impartial medical examiner. In his
August 8, 2007 report, Dr. Edwards noted no abnormal findings. He attributed appellant’s
symptoms to idiopathic degenerative disc disease and released her to light duty. Based on
Dr. Edwards’ opinion OWCP terminated appellant’s compensation and medical benefits
effective June 7, 2010.
The Board finds that Dr. Edwards’ opinion was of sufficient weight to resolve the
conflict of medical evidence. It was based on a complete and accurate factual and medical
history14 and presented detailed clinical findings demonstrating no residuals of the accepted
conditions. Dr. Edwards provided a clear explanation that appellant’s subjective symptoms
could not be related to the accepted conditions and were therefore due to idiopathic degenerative
disc disease.15 Also, he was unequivocal in finding that the herniated disc and spinal subluxation

11

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

12

Delphia Y. Jackson, 55 ECAB 373 (2004).

13

James P. Roberts, 31 ECAB 1010 (1980).

14

E.S., Docket No. 10-565 (issued December 21, 2010).

15

Deborah L. Beatty, 54 ECAB 340 (2003).

5

had resolved.16 Therefore, OWCP properly accorded Dr. Edwards the weight of the medical
evidence.17
On appeal, appellant contends that Dr. Edwards’ opinion was based on an incomplete
history as OWCP did not include 1996 imaging studies in the statement of accepted facts.
However, Dr. Edwards was given the complete medical record, which would include the 1996
imaging studies. Therefore, his opinion was based on a complete factual and medical history.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.18 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.19 The fact that a condition’s etiology is unknown or obscure neither relieves appellant
of the burden of establishing a causal relationship by the weight of the medical evidence, nor
shifts OWCP’s burden of proof to disprove an employment relationship.20
ANALYSIS -- ISSUE 2
Following the Office’s June 8, 2010 decision terminating her compensation benefits,
appellant submitted additional medical reports from Dr. Jones, an attending Board-certified
physiatrist. In July 8 and 22, 2010 reports, Dr. Jones related appellant’s nonanatomic pain
complaints and subjective symptoms. He found no objective abnormalities on examination.
Dr. Jones diagnosed lumbosacral spondylosis, cervical and lumbar facet pain, limb pain and
cervical spondylosis. However, he did not explain the pathophysiologic relationship between the
accepted injuries and the newly diagnosed conditions, or how the herniated L4-5 disc and spinal
subluxation would cause continuing residuals on and after June 7, 2010.21 Also, Dr. Jones
diagnosed cervical and lumbosacral conditions not accepted by OWCP. He did not provide
sufficient rationale supporting a medical causal relationship between these conditions and work
factors.22 Therefore, Dr. Jones’ reports are insufficiently rationalized to outweigh Dr. Edwards’
opinion or create a conflict of medical opinion.

16

D.E., 58 ECAB 369 (2007).

17

James P. Roberts, supra note 13.

18

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

19

Alice J. Tysinger, 51 ECAB 638 (2000).

20

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

21

Mary E. Marshall, 56 ECAB 420 (2005).

22

Alice J. Tysinger, supra note 19.

6

Thus, the Board finds that appellant submitted insufficient rationalized medical evidence
to establish a causal relationship between her condition on and after June 7, 2010 and the
accepted herniated lumbar disc. Therefore, appellant has failed to meet her burden of proof.
On appeal, appellant contends that OWCP wrongfully failed to consider Dr. Jones’
opinion. As stated, OWCP properly found that Dr. Jones’ reports were of insufficient probative
quality to outweigh Dr. Edwards’ opinion or create a conflict of medical opinion.
LEGAL PRECEDENT -- ISSUE 3
To require the office to reopen a case for merit review under section 8128(a) of FECA,23
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that 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.24 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.25
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.26 She need only
submit relevant, pertinent evidence not previously considered by OWCP.27 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.28
ANALYSIS -- ISSUE 3
In its September 2, 2010 decision, OWCP affirmed its June 8, 2010 decision terminating
appellant’s wage loss and medical compensation benefits. It found that new medical evidence
submitted from Dr. Jones was insufficient to warrant modification of the termination decision.
The critical issue at the time of the last merit decisions in the case was whether the medical
evidence established that appellant had continuing residuals of the accepted condition on and
after June 7, 2010. To be relevant, the evidence submitted supporting the request for
reconsideration must address the causal relationship of the conditions diagnosed by Dr. Jones to
appellant’s federal employment.

23

5 U.S.C. § 8128(a).

24

20 C.F.R. § 10.606(b)(2).

25

Id. at § 10.608(b). See also D.K., 59 ECAB 141 (2007).

26

Helen E. Tschantz, 39 ECAB 1382 (1988).

27

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

28

Annette Louise, 54 ECAB 783 (2003).

7

In support of her September 9, 2010 request for reconsideration, appellant submitted her
September 9 and 13, 2010 letters. She asserted deficiencies in Dr. Doman’s and Dr. Edwards’
reports. As appellant’s letters do not constitute medical evidence, they are irrelevant to the
claim. Therefore, they do not comprise a basis for reopening the case.29
Appellant has not established that OWCP improperly refused to reopen her claim for a
review of the merits under section 8128(a) of FECA. She 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 new evidence not previously considered
by OWCP. Therefore, OWCP’s October 14, 2010 decision denying her September 9, 2010
request for reconsideration was proper under the law and facts of this case.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage loss and medical
compensation benefits effective June 7, 2010. The Board further finds that she did not establish
continuing disability or residuals on and after June 7, 2010. The Board further finds that OWCP
properly denied appellant’s September 9, 2010 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 14 and September 2, 2010 are affirmed.
Issued: October 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
29

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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Appearances:
Dawn R. Elliott, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1915
Issued: March 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 30, 2008 appellant filed a timely appeal of a May 14, 2008 decision of the Office
of Workers’ Compensation Programs, which denied compensation between November 10, 2007
and March 25, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this claim.
ISSUE
The issue is whether appellant has established that he was disabled between
November 10, 2007 and March 25, 2008 causally related to his September 14, 2007
employment-related injury.
FACTUAL HISTORY
On October 11, 2007 appellant, then a 34-year-old flat machine operator, filed a
traumatic injury claim alleging that on September 14, 2007 he pulled his back and experienced
pain down both legs after taking flat tubs off of a belt to load them onto a truck. He stopped
work that day and did not return. The employing establishment controverted the claim noting

that appellant had undergone back surgery in April 2007 and had requested light duty on
August 10, 2007.
Appellant sought treatment on September 15, 2007 from Judy Gladish, a nurse
practitioner, who diagnosed acute myofascial lumbar strain and referred appellant to physical
therapy. He also sought treatment from Dr. Paul Goodlett, a Board-certified family medicine
specialist. In an October 2, 2007 report, Dr. Goodlett noted that appellant had an onset of back
pain two weeks prior. He advised that appellant had lower back pain radiating to the left and
right thigh sustained in the context of lifting a heavy object. Dr. Goodlett diagnosed chronic
lower back pain. In an undated work restriction form received by the Office on November 1,
2007, he indicated that appellant should be excused from work until November 16, 2007 due to
the condition he sustained on September 14, 2007. On November 19, 2007 Dr. Goodlett noted
appellant’s continued complaint of low back pain. He indicated that appellant’s spine was
positive for posterior tenderness and lumbar palpation revealed right tenderness, thereby
concluding chronic lower back pain. In a November 28, 2007 progress report, Dr. Goodlett
reiterated the diagnosis of chronic lower back pain. In an October 2, 2007 radiology report,
Dr. Sean Ladson, a Board-certified diagnostic radiologist, noted that appellant was post posterior
fusion at the L5-S1 level. He found postoperative changes at the L5-S1 level and no acute
osseous abnormality.
In a December 4, 2007 decision, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish causal relationship.
On December 28, 2007 appellant requested reconsideration and submitted two treatment
notes dated December 6, 2007 from Dr. Ghias Arar, a neurologist, who noted that appellant
injured his back in April 2007 at which time he was diagnosed with radiculopathy and had
undergone surgery. Dr. Arar advised that appellant’s back condition was exacerbated at work in
September 2007 while lifting a heavy box of magazines. The result was severe lancinating
spasms in the low back shooting down to the lower extremities. Dr. Arar concluded from the
electromyogram (EMG) results that it was an abnormal study consistent with bilateral advanced
L5 radiculopathy. On December 21, 2007 Dr. Dan Hall, a Board-certified diagnostic radiologist,
evaluated the computerized tomography (CT) scan results of appellant’s lumbar spine. He found
they were satisfactory and normal expected postoperative changes of a decompressive
laminectomy at the L5-S1 level with no acute changes in lumbar disc spaces.
In a decision dated March 31, 2008, the Office accepted that appellant sustained a
temporary aggravation of lumbar radiculopathy at the L5 level. It noted that appellant’s
aggravation was temporary due to the fact that the medical evidence showed he had a preexisting
nonwork-related low back condition. The Office also asked appellant to submit Form CA-7,
claim for compensation, if he believed he had any wage loss due to the accepted work injury.
On April 7, 2007 appellant filed a claim for compensation for the period November 10,
2007 to March 25, 2008. In an April 11, 2008 letter, the Office advised him of the factual and
medical evidence needed to support his claim. It noted that, while appellant underwent surgery
on January 8, 2008, the surgery was not authorized by the Office. The Office also noted that the
medical evidence indicated that appellant previously had surgery in 2007 for a low back
condition not accepted as work related. In light of the fact that it had only accepted temporary

2

aggravation of his preexisting injury, it emphasized the need for medical evidence establishing
disability for work during the period claimed.
Appellant submitted several medical records from Dr. Mark Myers, an orthopedic
surgeon. On January 2, 2008 Dr. Myers indicated that testing indicated that appellant’s
symptoms were due to failed spinal fusion and postoperative screw migration at L5. He stated
his plan for surgical removal and exploration with possible revision fusion if pseudoarthrosis was
present. In a January 4, 2008 medical report, Dr. Myers noted that appellant continued smoking
after undergoing an L5-S1 instrumented decompression and fusion surgery on May 1, 2007 and
his pain subsequently progressed to become severe. He evaluated the CT results and again
concluded foraminal encroachment by appellant’s screws. As a result, Dr. Myers recommended
surgery to remove instrumentation and explore possible revision of the fusion. In a January 8,
2008 operative report, he performed a removal of instrumentation at L5-S1, exploration of fusion
and revision L5-S1 fusion. Dr. Myers stated that postoperative neurodiagnostic studies showed
abnormalities consistent with radiculitis, and overall the studies suggested pseudoarthrosis due to
smoking resulting in screw migration and subsequent symptoms. He further noted that
appellant’s postoperative diagnosis as back pain and sciatica.
In a decision dated May 14, 2008, the Office denied appellant’s claim for compensation
between November 10, 2007 and March 25, 2008 finding that the evidence of record failed to
support disability from work during this period. It noted that, while appellant may have been
disabled from work after the surgery, the medical evidence indicated that the procedure was not
related to the accepted aggravation of lumbar radiculopathy and that the surgery was not
approved.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including that any specific condition
or disability for which he claims wage-loss compensation is causally related to the employment
injury.2
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that he is disabled for work as a
result of his employment injury. Whether a particular injury causes an employee to be disabled
for employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.3 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work. When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
1

5 U.S.C. §§ 8101-8193.

2

Tammy Medley, 55 ECAB 182 (2003).

3

Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

3

issue of disability or a basis for payment of compensation.4 The Board will not require the
Office to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
The Office accepted that appellant sustained a temporary aggravation of lumbar
radiculopathy at the L5 level. Appellant claims that this injury caused his disability for
employment from November 10, 2007 through March 25, 2008. However, this contention is not
supported by the medical evidence of record.
On December 6, 2007 Dr. Arar treated appellant for back pain exacerbation from the
September 14, 2007 work-related injury. However, he did not address any particular period of
disability in his treatment notes. Dr. Arar noted that appellant sustained an exacerbation of his
preexisting back condition while at work in September 2007. However, he did not address
whether the work-related exacerbation caused any disability beginning November 10, 2007 or
provide any reasons regarding why any disability would be due to the work-related exacerbation
and not appellant’s preexisting nonwork-related lower back condition and failed spinal fusion.7
Dr. Goodlett’s undated work restriction indicated disability from September 14 through
November 16, 2007. However, he does not identify the accepted work injury or address the
reasons why any period of disability would be due to the accepted employment-related
temporary aggravation of L5 radiculopathy. Therefore, this work restriction form is insufficient
to establish any compensable disability beginning November 10, 2007. In subsequent reports,
Dr. Goodlett generally noted treating appellant for lower back pain without differentiating
between whether he was treating appellant’s accepted aggravated lumbar radiculopathy or his
preexisting back condition. Given appellant’s concurrent underlying back condition, such a
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

5

G.T., supra note 4; Fereidoon Kharabi, supra note 3.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

See Mary Ruddy, 49 ECAB 545 (1998) (the Board held that a physician’s general conclusions regarding causal
relationship did not provide the necessary medical rationale to explain why medically the employment factors would
have caused the diagnosed condition).

4

distinction is necessary to support his claim for disability causally related to the accepted
temporary aggravation of his low back condition.
The record also contains several reports and treatment notes from Dr. Myers, who
performed a revision fusion at L5-S1 after noting that the screws from a May 1, 2007 nonworkrelated surgery had migrated. Dr. Myers did not address whether appellant had any disability
beginning November 10, 2007 due to the accepted work injury. He also did not indicate that
appellant’s 2008 surgery was in any manner related to the accepted condition. As a result, the
reports from Dr. Myers do not support work-related disability as they instead suggest that
January 8, 2008 surgery was necessitated by nonwork factors.8
Moreover, other medical reports of record, such as reports of diagnostic testing, also do
not specifically address whether appellant had any employment-related disability from
November 10, 2007 to March 25, 2008.9 Treatment notes from Ms. Gladish are not considered
medical evidence as nurses are not considered physicians under the Act, and therefore they
cannot provide a medical opinion.10 Consequently, the medical evidence does not establish that
appellant was disabled for work between November 10, 2007 and March 25, 2008 as a result of
the accepted temporary aggravated radiculopathy injury.
CONCLUSION
The Board finds that appellant has not established that he was disabled between
November 10, 2007 and March 25, 2008 causally related to his September 14, 2007 injury.

8

See Kennett O. Collins, Jr., 55 ECAB 649 (2004) (while the Office is obligated to pay for treatment of
employment-related conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition).
9

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

Registered nurses and licensed practical nurses are not “physicians” as defined under the Act. Their opinions
are of no probative value. Roy L. Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term
“physician”); see also Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general,
can only be given by a qualified physician).

5

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Fort Worth, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1335
Issued: March 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 10, 2011 appellant, through his attorney, filed a timely appeal of a March 14,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied a
period of disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability for the
period August 9 to 30, 2010 as a result of his employment-related aggravation of acute asthmatic
bronchitis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 28, 2009 appellant, then a 47-year-old information technology specialist, filed
an occupational disease claim alleging that he was exposed to mold in the performance of his
duties. On September 29, 2008 he became aware of his disease or illness. Appellant initially
stopped work on March 30, 2009 and returned on April 27, 2009. The employing establishment
noted that he was moved to a new work area. It also provided an April 6, 2009 mold summary
report documenting the presence of mold in appellant’s work area. On June 15, 2009 OWCP
accepted the claim for acute aggravation of acute asthmatic bronchitis.2
In a June 24, 2009 report, Dr. John Dang, a Board-certified internist, advised that
appellant could return to work. He provided restrictions which included no exposure to molds.
Appellant was subsequently placed in the vocational rehabilitation program until the employing
establishment could be cleared and retested for mold. He received appropriate compensation.
In a report dated August 5, 2009, an OWCP medical adviser opined that the accepted
conditions should include acute asthma and reactive airway disease.
On October 1, 2009 the employing establishment notified OWCP and appellant that the
worksite had been remediated and was deemed free of toxic mold. It confirmed that his office
would be ready for occupancy as of October 13, 2009 and he was advised to report for duty on
that date.
On October 9, 2009 the employing establishment premises was tested and found cleared
of toxic mold. Appellant was cleared to return to work on October 9, 2009; however, he did not
return to full duty until November 4, 2009.3
A January 25, 2010 chest computerized tomography (CT) scan read by Dr. Kristen P.
Ethridge, a Board-certified diagnostic radiologist, revealed a widely patent airway and no
parenchymal consolidations or pericardial or pleural effusion seen.
On July 20, 2010 appellant was seen by a physician’s assistant for cough and breathing
difficulty.
On August 11, 2010 appellant submitted a Form CA-7 claim requesting wage-loss
compensation for disability from August 9 to 30, 2010.
In a report dated August 17, 2010, Dr. Dang noted that appellant was doing about the
same and still coughing. He diagnosed mold inhalation and placed appellant off work. In an
August 30, 2010 treatment note, Dr. Dang kept appellant off work. He stated that appellant was
prevented from returning to work as he could have “no exposure to mold.”

2

The record reflects that appellant has a preexisting asthma condition.

3

In an October 6, 2009 report, Dr. Hisham Bismar, a Board-certified internist, released appellant to work
effective November 4, 2009. He explained that the medication must be out of his system before he returned to work.

2

By letter dated October 5, 2010, OWCP informed appellant of the evidence needed to
support his claim and requested that he submit additional evidence within 30 days.
In an October 6, 2010 report, Dr. Bismar noted that he examined appellant on
August 5, 2010. The findings included dry cough, headaches, tightness in the chest and sinus
problems. Dr. Bismar noted that appellant was treated with a course of prednisone and removed
from work until the condition improved and clean air samples were received. He explained that
appellant had reactive airway disease which could be “aggravated by any lung irritants.”
Dr. Bismar placed appellant off work until further notice.
An indoor microbial assessment was conducted by Texas Mold Inspection Service
(TXMIS) on October 15, 2010. It reported findings of “no moisture sources observed and mold
spore elevations are considered insignificant.” TXMIS noted that a sample from appellant’s
office contained a spore count of Chaetomium +19. It noted that the spore elevation fell within
the industry guideline acceptance and was considered insignificant.
In a November 29, 2010 statement, appellant noted that the safety inspection revealed
that toxic molds remained in his workplace. He alleged that the only air samples taken were
obtained during the removal process in the contained affected areas which were sealed in plastic
with an air scrubber running days prior to the testing. Appellant contended that the recent air
samples showed that toxic molds were still present in the work area.
On November 18, 2010 Dr. Bismar opined that, even though the work environment
showed acceptable levels, because of his reactive airway disease, appellant would be “super
sensitive to even insignificant level of any lung irritant.”
By decision dated December 1, 2010, OWCP denied appellant’s claim for compensation
finding that the medical evidence failed to establish that he was disabled for work for the period
August 9 to 30, 2010 as a result of the accepted work injury. It found that he had a lifelong
asthma condition and the air samples revealed that the area was cleared of toxic mold.
On December 13, 2010 appellant requested a review of the written record. In a letter
dated December 13, 2010, he stated that his physician, Dr. Bismar, removed him from duty on
August 5, 2010. Appellant explained that he was removed from the work environment due to the
fact that it contained mold.
In a December 2, 2010 report, Dr. Bismar noted that appellant reported ongoing mold
inhalation and reactive coughing as well as chest pain. He opined that appellant had a continuing
work-related health problem due to mold inhalation.
In a January 16, 2011 report, Dr. Bismar noted that appellant’s chest x-rays, pulmonary
function test and treatment with an inhalation nebulizer were all routine. He placed appellant off
work. Dr. Bismar continued to treat appellant and place him off work.
By decision dated March 14, 2011, an OWCP hearing representative affirmed the prior
decision. The hearing representative expanded the claim to include acute asthma and reactive
airway disease.
3

LEGAL PRECEDENT
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.4 Furthermore, whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the reliable, probative and
substantial medical evidence.5
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.6 The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consists only of a repetition of the employee’s
complaints that he or she hurt too much to work, without objective signs of disability being
shown, the physician has not presented a medical opinion on the issue of disability or a basis for
payment of compensation.7 The Board has held that a medical opinion not fortified by medical
rationale is of little probative value.8
ANALYSIS
Appellant alleged that he was totally disabled for intermittent periods August 9 to
30, 2010. He alleges that the employing establishment had mold, which aggravated his acute
asthmatic bronchitis such that he was unable to work. The Board finds, however, that appellant
failed to submit probative medical evidence demonstrating total disability for this period of time
due to his accepted conditions.
Appellant submitted reports from Dr. Bismar and Dr. Dang. On October 6, 2010
Dr. Bismar who noted that he examined appellant on August 5, 2010. His findings included dry
cough, headaches, tightness in the chest and sinus problems. Appellant was treated with a course
of prednisone and removed from work until the condition improved and clean air samples were
received from the employing establishment. Dr. Bismar explained that appellant had reactive
airway disease which could be “aggravated by any lung irritants” and placed him off work. The
Board notes that the indoor microbial assessment conducted by TXMIS on October 15, 2010
revealed “no moisture sources observed and mold spore elevations are considered insignificant.”
It also found that a sample taken from appellant’s office contained a spore count of Chaetomium
+19 which was considered insignificant. The Board finds that Dr. Bismar’s opinion that
4

Cheryl L. Decavitch, 50 ECAB 397 (1999).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

7

John L. Clark, 32 ECAB 1618 (1981).

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

4

appellant’s lung condition could be “aggravated by any lung irritants” is equivocal and not fully
rationalized. The Board has held that speculative and equivocal medical opinions regarding
causal relationship have little probative value.9 Dr. Bismar did not provide sufficient medical
reasoning explaining why a documented level of a particular workplace substance would have
caused or aggravated appellant’s accepted condition. On November 18, 2010 he opined that
even though the work environment showed acceptable levels because of his reactive airway
disease, appellant would be super sensitive to even an insignificant level of any lung irritant.
Dr. Bismar did not provide any reasoning for his opinion on causal relationship. This is
particularly important where the evidence indicates that appellant has a preexisting asthma
condition.
In reports dated December 2, 2010 and January 16, 2011, Dr. Bismar noted that appellant
reported continuing mold inhalation and reactive coughing as well as chest pain from coughing.
As noted above, the mold was found to be at insignificant levels. Dr. Bismar opined that
appellant had a continuing work-related health problem due to mold inhalation. He did not
explain how he arrived at this conclusion or indicate that appellant was disabled for work during
the period August 9 to 30, 2010. The Board has held that a medical opinion not fortified by
medical rationale is of little probative value.10 Furthermore, in his January 16, 2011 report,
Dr. Bismar noted that appellant’s chest x-rays, pulmonary function test and treatment with an
inhalation nebulizer were all routine.
In reports dated August 17 and 30, 2010, Dr. Dang diagnosed mold inhalation and placed
appellant off work. In his August 30, 2010 treatment note, he indicated that appellant was
prevented from returning to work as he could have “no exposure to mold.” As noted above, the
mold findings were minimal or insignificant. Without an explanation as to how these minimal or
insignificant mold levels could cause or contribute to disability, these reports are of limited
probative value.
The Board also notes that the record contains additional medical evidence such as
diagnostic reports; however, none of the other reports specifically attributed appellant’s disability
from work commencing August 9 to 30, 2010, to his accepted employment injuries.
Although appellant alleged that his disability commencing from August 9 to 30, 2010,
was due to his accepted employment injury, the medical evidence of record does not establish
that his claimed disability during the time frame was related to his accepted employment injuries.
The Board finds that he has failed to submit rationalized medical evidence establishing that his
disability for the period August 9 to 30, 2010, was causally related to his accepted employment
injury and thus, he has not met his burden of proof.

9

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal; the opinion should be
expressed in terms of a reasonable degree of medical certainty).
10

Michael E. Smith, 50 ECAB 313 (1999); Annie L. Billingsley, 50 ECAB 210 (1998).

5

CONCLUSION
The Board finds that appellant failed to establish that he was disabled for the period
commencing from August 9 to 30, 2010, as a result of his employment-related aggravation of
acute asthmatic bronchitis.11
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2012
Washington, DC

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

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

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

11

Appellant may submit evidence or argument with a written request for reconsideration 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.

6