United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TUSCALOOSA VETERANS
ADMINISTRATION MEDICAL CENTER,
Tuscaloosa, AL, Employer
__________________________________________

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

Docket No. 21-0745
Issued: October 22, 2021

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 April 21, 2021 appellant filed a timely appeal from a March 5, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder or
neck condition causally related to the accepted August 31, 2018 employment incident.
FACTUAL HISTORY
This case has been previously before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference.3 The relevant facts
are as follows.
On September 4, 2018 appellant, then a 56-year-old security clerk, filed a traumatic injury
claim (Form CA-1) alleging that on August 31, 2018 she injured her right arm while in the
performance of duty. She alleged that she was in a verbal altercation with her coworker, L.M.,
when Chief W. grabbed and jerked her right arm, pulling her backward and then released her arm
as he slipped and fell backward. Appellant did not stop work.
In an August 20, 2018 medical report, Dr. Eugene Mangieri, a Board-certified
anesthesiologist, indicated that appellant was following up for left shoulder and right wrist pain
and that she had a history of bilateral rotator cuff repair in 2006. He conducted a physical
examination, which revealed normal results except pulse deficits. Dr. Mangieri diagnosed joint
pain of the shoulder region, carpal tunnel syndrome, malaise and fatigue, chronic postoperative
pain, and complex regional pain syndrome.
In a September 17, 2018 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed to establish her
claim and requested a narrative medical report from her treating physician containing a detailed
description of findings and a diagnosis, explaining how her work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In September 1, 2018 emergency room reports, Dr. Inkil Hwangpo, an internist, indicated
that appellant presented with pain in her right arm and right side of her neck, which she attributed
to an incident where a coworker pulled her right arm and shoulder. He noted that her pain had
worsened since the incident and that she had a history of right shoulder surgery several years ago.
Dr. Hwangpo conducted a physical examination and documented tenderness in the neck and
limited range of motion in the right shoulder due to pain. He reviewed x-rays of the right shoulder
and cervical spine and noted a progression of degenerative disease at C6-7 when compared with a
prior study dated February 19, 2009.
In a note dated September 4, 2018, Cynthia Buford, a licensed practical nurse at the
employing establishment’s health outpatient center, indicated that appellant described an incident
on August 31, 2018 where she was in an altercation with a coworker when Chief W. grabbed her
arm and then let go. Appellant’s arm did not hurt immediately after the incident, but she went to
the emergency room the following day due to pain. Ms. Buford noted that appellant presented a

3

Docket No. 19-1537 (issued on May 13, 2020).

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return-to-work excuse note indicating that she could return to light-duty work on
September 3, 2018.
A September 4, 2018 magnetic resonance imaging (MRI) scan of appellant’s right shoulder
without contrast revealed edema and arthropathy in the acromioclavicular (AC) joint and
suggestion of a partial tear of the rotator cuff; however, large amount of metallic artifact from a
previous surgery significantly compromised the detail of the scan. A cervical MRI scan of even
date revealed mild cervical spondylosis.
In a September 25, 2018 medical report, Dr. Mangieri indicated that appellant was
following up with regard to bilateral shoulder pain. He recounted the August 31, 2018
employment incident and the medical care she received after the incident. Dr. Mangieri noted that
appellant’s September 4, 2018 right shoulder MRI scan revealed a rotator cuff tear with an
effusion. He also again noted that her past medical history included right rotator cuff surgery in
2006. Dr. Mangieri performed a physical examination, which revealed normal results aside from
pulse deficits.
In a medical report of even date, Dr. Bryan King, an orthopedic surgeon, indicated that
appellant complained of worsening right shoulder and right upper arm pain and weakness. He
noted that her surgical history included bilateral shoulder arthroscopies and rotator cuff repairs.
Dr. King conducted a physical examination of appellant’s right shoulder, which revealed limited
range of motion, a positive impingement sign at 90 degrees, and tenderness to palpation. He
opined that her MRI scan was of poor quality, but likely showed a new rotator cuff tear. Dr. King
diagnosed an unspecified rotator cuff tear or rupture of the right shoulder, right shoulder
impingement syndrome, and other injury of muscles and tendons of the rotator c uff of an
unspecified shoulder. He opined that the altercation at work stressed appellant’s previous rotator
cuff repair, and that her condition was likely a recurrent rotator cuff pathology.
An October 4, 2018 MRI scan of with contrast of the right shoulder revealed a tear of the
infraspinatus at the 12:00 position and mild hypertrophic changes of the AC joint.
In an October 11, 2018 medical report, Dr. King noted that appellant’s symptoms had not
improved since her prior visit. He conducted a right shoulder examination, which revealed
decreased range of motion, and he indicated that her MRI scan likely indicated a partial tear.
By decision dated October 26, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her diagnosed conditions were
causally related to the accepted August 31, 2018 employment incident.
On November 19, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP thereafter received a November 13, 2018 medical report by Dr. Mangieri noting
that appellant had bilateral rotator cuff repairs which prevented her from engaging in any
prolonged activity, including typing, due to bilateral pain radiating into her upper extremities.
Dr. Mangieri indicated that these limitations were a direct result of the work-related reinjures she
sustained during the course of her occupational duties.

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A January 9, 2019 medical report, from Dr. Mangieri noted that appellant experienced right
lumbar radicular pain with some edema in November 2018. Results from a physical examination
were normal aside from pulse defects. Dr. Mangieri further noted that appellant had returned to
full duty.
A hearing was conducted on March 21, 2019 and appellant testified to the details of the
incident, her subsequent medical care, and her ongoing symptoms.
By decision dated June 5, 2019, OWCP’s hearing representative affirmed OWCP’s
October 26, 2018 decision.
OWCP continued to receive evidence. In a letter dated April 8, 2019 from A.R., an
employing establishment compensation coordinator, indicating that she had reviewed the
transcript of appellant’s March 21, 2019 testimony. She outlined several points of clarification
regarding the claimed dates of continuation of pay and the date Dr. King released appellant to
return to work. OWCP also received an additional statement from appellant dated May 16, 2019
in response to the employing establishment’s April 8, 2019 letter.
On July 11, 2019 appellant, through counsel, appealed to the Board. By decision dated
May 13, 2020, the Board affirmed OWCP’s June 5, 2019 decision.4
In a January 14, 2020 medical note, Dr. Mangieri noted that appellant reported pain in both
of her shoulders, which was well controlled with medication. He performed a physical
examination and diagnosed pain in joint involving shoulder region.
On December 11, 2020 appellant, through counsel, submitted a letter requesting
reconsideration and attached a November 24, 2020 narrative medical report by Dr. Mangieri. In
the report, Dr. Mangieri described the accepted August 31, 2018 employment incident and
outlined his review of treatment records of Dr. King and the September 4, 2018 MRI scan results.
He noted Dr. King’s opinion that appellant had recurrent right rotator cuff pathology as a
consequence of the work incident and indicated that he agreed with that opinion to a reasonable
degree of medical certainty.
By decision dated March 5, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 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
4

Id.

5

Id.

6

F.H., Docket No.18-0869 (issued January29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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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. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The 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 causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 A physician’s
opinion on whether there is causal relationship between the diagnosed condition and the implicated
employment incident must be based on a complete factual and medical background. 11
Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship
between the diagnosed condition and appellant’s specific employment incident. 12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
or neck condition causally related to the accepted August 31, 2018 employment incident.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s June 5, 2019 decision, which was considered by the Board in its
May 13, 2020 decision. Findings made in prior Board decisions are res judicata absent further
merit review by OWCP under section 8128 of FECA. 13
Dr. Mangieri, in his November 24, 2020 narrative report, reiterated appellant’s history
related to the accepted August 31, 2018 employment incident where another employee grabbed
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).
11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

A.A., Docket No. 20-1399 (issued March 10, 2021); M.F., Docket No. 21-0390 (issued August 23, 2021).

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her right arm abruptly and pulled her right arm and shoulder, which caused him to fall backwards
before releasing her arm. He outlined his review of Dr. King’s treatment records and concurred
with his finding that she had recurrent right rotator cuff pathology as a consequence of the work
incident. However, Dr. Mangieri failed to explain, with adequate rationale, how the accepted
employment incident either caused or contributed to appellant’s right shoulder condition. The
Board has held that a medical opinion should reflect a correct history and offer a medically -sound
and rationalized explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions. 14 Thus, the Board finds that the
November 24, 2020 narrative report from Dr. Mangieri is insufficient to establish causal
relationship.
In his January 14, 2020 medical report, Dr. Mangieri noted appellant’s right rotator cuff
tear diagnosis and her 2006 right rotator cuff surgery. However, the report does not contain an
opinion on causation. 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.15 Therefore, Dr. Mangieri’s January 14, 2020 report is also insufficient to establish
appellant’s claim.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s right shoulder and neck conditions and the accepted August 31, 2018 employment
incident, 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 shoulder
or neck condition causally related to the accepted August 31, 2018 employment incident.

14

T.G., Docket No. 21-0175 (issued June 23, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021); see K.W.,
Docket No. 19-1906 (issued April 1, 2020).
15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 22, 2021
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
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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

Docket No. 14-638
Issued: August 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2014 appellant filed a timely appeal from an August 1, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on October 10, 2012 in the
performance of duty.
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s
decision. See 20 C.F.R. § 501.3(f)(2). The 180th day from the August 1, 2013 decision is January 28, 2014. Since
using January 29, 2014, the date the appeal was received by the Clerk of the Board, 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 January 24, 2014, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 23, 2012 appellant, then a 56-year-old mail processing clerk, filed a
traumatic injury claim alleging that on October 10, 2012 she sustained a right wrist contusion
when she was struck by an object thrown by another employee. She stopped work on
October 10, 2012. The employing establishment controverted the claim, noting that appellant
alleged that a coworker placed two thick parcels on her hand but that the coworker denied the
allegation.
In a report dated October 11, 2012, Dr. Carlos Garrett, a Board-certified internist, related
that appellant described her injury as occurring the day before when a coworker threw “two thick
pieces [of] Express Mail on top of [her] right hand and wrist….” On examination he found no
erythema, ecchymosis, masses, swelling, deformity or atrophy but tenderness over the extensor
surface of the wrist. Dr. Garrett found that appellant had a negative Phalen’s test, Tinel’s sign
and Finkelstein’s maneuver. He diagnosed a hand contusion and noted that x-rays were normal.
In a statement dated October 12, 2012, John R. Strang, a coworker, related that on
October 10, 2012 he took two flats to give appellant but that she did not respond when he told
her that he had mail.3 He put the two flats behind her and walked away. Mr. Strang heard the
mail hit the floor and saw appellant leaving. Appellant did not indicate that she was hurt.
In a report dated October 12, 2012, Dr. Debra K. Cooper, an osteopath, discussed
appellant’s assertion that two days earlier a coworker threw a package that hit her right hand.
She described other “workplace issues” with the coworker and related that appellant continued to
experience right wrist pain. On examination Dr. Cooper found mild swelling across the dorsum
of the right hand with full range of motion and no loss of strength. She diagnosed a hand
contusion and sprain/strain of the right hand and wrist. Dr. Cooper stated that appellant’s case
was “complicated by personnel concerns” but that she did “have some objective findings in her
wrist exam[ination].” In an accompanying form report, she related that appellant’s claim
appeared to qualify as work related and released her to return to work with restrictions.
On October 17, 2012 Dr. Michael J. Roberts, an osteopath, reviewed appellant’s
complaints of right wrist pain without numbness, tingling or weakness. On examination he
found full range of motion and strength of the right wrist with no loss of sensation. Dr. Roberts
diagnosed a wrist and hand sprain/strain and wrist contusion. He advised that appellant’s
condition appeared employment related and that she could work with restrictions. Dr. Roberts
provided a similar progress report dated October 21, 2012.
On October 26, 2012 Dr. Alesia Wagner, an osteopath specializing in family medicine,
found a loss of sensation to light touch and pinprick of the right wrist with a negative Phalen’s
test and Tinel’s sign but positive Finkelstein’s test. She referred appellant for electrodiagnostic
studies and chiropractic treatment and asserted that her condition appeared to be due to her
employment.
3

On October 24, 2012, Leslie Y. Kosaka, a supervisor, indicated that appellant initially told her on October 11,
2012 that Mr. Strang hit her with Express Mail on her hand but later stated that two pieces of mail had been laid on
her hand while she was hanging mail sacks.

2

On October 31, 2012 Dr. Leslie M. Kalman, who specializes in family medicine,
diagnosed a right wrist and hand sprain/strain and a hand and wrist contusion. She found no
abnormalities of the right upper extremity and opined that appellant could work with restrictions.
By letter dated November 2, 2012, OWCP requested that appellant submit additional
factual and medical information, including a detailed report from her attending physician
addressing the causal relationship between any diagnosed condition and employment factors.
On November 13, 2012 Dr. Kalman requested authorization for diagnostic studies due to
appellant’s complaints of numbness in the right fingers and swelling of the right hand. On
examination she found swelling of the right wrist without other abnormalities. Dr. Kalman
determined that appellant could work with restrictions and that her condition appeared work
related.
In response to OWCP’s request for additional information, on November 13, 2012
appellant related that she reported the October 10, 2012 incident with the coworker to the police.
She related that on October 10, 2012 she was hanging empty Express Mail sacks on hooks when
Mr. Strang threw Express Mail parcels onto the top of her hand, causing her wrist to collapse
onto a bar rack.4
By decision dated December 5, 2012, OWCP denied appellant’s claim after finding that
she had not submitted sufficient factual evidence to establish that the October 10, 2012 incident
occurred at the time, place and in the manner alleged.
In a progress report dated November 27, 2012, Dr. Cooper noted that appellant continued
to experience numbness and tingling in her wright hand. On examination she found a positive
Phalen’s test and Tinel’s sign on the right. Dr. Cooper diagnosed a right wrist contusion and
sprain/strain and a hand contusion and sprain/strain and advised that the conditions seemed
related to employment. In a progress report dated December 4, 2012, Dr. Roberts diagnosed
right hand tenosynovitis, a lesion of the median nerve, right hand and finger sprain/strain and a
right hand contusion. He found that the claim “appeared to qualify as work related.”5
On December 27, 2012 appellant requested an oral hearing before an OWCP hearing
representative. At the telephone hearing, held on May 8, 2013, she related that she did not
inform her supervisor immediately of her injury because she had previously complained about
Mr. Strang and nothing was done. The hearing representative noted that initial medical
evaluations did not describe significant objective findings and advised appellant to submit
additional medical evidence.

4

In a statement dated October 24, 2012, Albert Winbush related that on October 10, 2012 appellant asked to
leave early but did not indicate that she was injured. On October 24, 2012 Ms. Kosaka indicated that appellant
initially told her on October 11, 2012 that she had been hit by Express Mail but later stated that two pieces of mail
had been laid on her hand.
5

On December 12, 2012 Dr. Barry Buffman, a urologist, found a negative Tinel’s sign and Phalen’s test on the
right and diagnosed wrist and hand contusions and sprain/strains that appeared employment related. On
December 18, 2012 Dr. Kalman discharged appellant from care due to the denial of her claim.

3

On April 29, 2013 Dr. Behzad Emad, a Board-certified physiatrist, diagnosed a
tendinoligamentous injury of the right elbow and wrist, right elbow lateral epicondylitis and
cubital tunnel syndrome, right carpal tunnel syndrome, right wrist derangement, chronic pain and
disability and an adjustment reaction. He stated, “I attribute [appellant’s] present right elbow
and wrist condition and need for treatment to the industrial injury of October 10, 2012 based on
[her] history, subjective complaints, objective facts and information available to me at this time.”
Dr. Emad submitted substantially similar progress reports on May 9 and 13, June 3 and
July 1, 2013.6
By decision dated August 1, 2013, an OWCP hearing representative affirmed the
December 5, 2012 decision as modified to reflect that appellant had established that she was
struck on the wrist by falling parcels on October 10, 2012. He found that, while it was not
established that Mr. Strang threw mail at appellant, her actions in reporting the injury and
seeking medical treatment the following day was sufficient to show that two parcels fell and
struck her on that date. The hearing representative determined, however, that the medical
evidence was insufficient to establish that she sustained a diagnosed condition as a result of the
October 10, 2012 employment incident.
On appeal, appellant contends that OWCP should accept that she sustained a work injury
and asserts that she continues to experience problems due to her injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while 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.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.10 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
6

In a report dated May 20, 2013, Dr. Cooper summarized the medical treatment appellant received from
October 11 to December 18, 2012. She related that diagnostic studies would have provided a more accurate idea of
her condition.
7

See supra note 2.

8

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

10

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

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for which compensation is claimed.11 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.12
ANALYSIS
Appellant filed a claim alleging that on October 10, 2012 a coworker threw two mail
parcels onto her right wrist. The coworker related that he put two mail flats behind her and then
heard them hit the floor as he was walking away. OWCP accepted that appellant was struck on
the right wrist by two pieces of mail on October 10, 2012 although the exact mechanism of
injury was not established. Appellant informed the employing establishment of the incident and
sought medical treatment the following day. The record does not contain inconsistencies
sufficient to cast doubt on her allegation that on October 10, 2012 she was struck on the right
wrist by two packs of mail.13 The issue, consequently, is whether appellant sustained a
compensable injury as a result of the October 10, 2012 employment incident.
On October 11, 2012 Dr. Garrett found no erythema, ecchymosis, masses, swelling,
deformity and atrophy of the right wrist. He further determined that appellant had a negative
Phalen’s test, Tinel’s sign and Finkelstein’s maneuver and normal x-rays. Dr. Garrett noted that
she complained of tenderness over the extensor surface of the wrist. He diagnosed a hand
contusion. Dr. Garrett did not specifically address the cause of her condition. In a simple
traumatic injury, such as a knife cut that, is reported to and seen by a physician promptly, there is
no need to obtain a rationalized explanation of causal relationship.14 In this case, however,
Dr. Garrett provided no positive examination findings supporting his diagnosis of a wrist
contusion. Given the lack of objective findings the day following the injury, additional
explanation is required to support that appellant sustained a wrist contusion due to the
October 10, 2012 work incident.
On October 12, 2012 Dr. Cooper discussed appellant’s contention that a coworker threw
a package that hit her right hand and her assertion that she had experienced other difficulties with
the same coworker. On examination the physician found mild swelling of the dorsum of the
right hand as an objective finding. Dr. Cooper concluded that appellant’s “claim appears to
qualify as work related” and that she could perform modified employment. Her conclusion,
however, is couched in speculative terms. Medical opinions that are speculative or equivocal in
character are of diminished probative value.15
11

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

12

Id.

13

See Betty J. Smith, 54 ECAB 174 (2002) (an employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating the Medical Evidence,
Chapter 2.810.5(c) (September 2010); see also R.R., Docket No. 06-1975 (issued January 18, 2007).
15

See D.D., 57 ECAB 710 (2006).

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On October 17 and 25, 2012 Dr. Roberts found that appellant had no loss of motion,
strength or sensation of the right wrist. He diagnosed a wrist contusion and hand sprain/strain
and determined that her condition appeared employment related. On October 26, 2012
Dr. Wagner referred appellant for diagnostic tests but asserted that her condition appeared to be
due to her employment. On October 31, 2012 Dr. Kalman diagnosed wrist contusion and hand
and wrist sprain/strain. She found no right upper extremity abnormalities on examination.
Dr. Kalman also opined that appellant’s condition appeared work related. The opinions of
Dr. Roberts, Dr. Wagner and Dr. Kalman, however, are speculative in nature regarding causation
and thus, as discussed, of little probative value.16 Further, neither physician provided positive
objective findings in support of the diagnosed conditions.
On November 13, 2012 Dr. Kalman noted that appellant complained of swelling in her
right hand and numbness of the right fingers. On examination the physician found swelling of
the right wrist but no other abnormalities. Dr. Kalman advised that appellant’s condition
appeared employment related. As discussed, however, the Board has held that medical opinions
which are speculative or equivocal in character have little probative value.17
In a progress report dated November 27, 2012, Dr. Cooper found a positive Tinel’s sign
and Phalen’s test on the right. She diagnosed a right wrist and hand contusion and sprain, which
seemed due to employment. On December 4, 2012 Dr. Roberts diagnosed tenosynovitis of the
right hand and a median nerve lesion, right hand and finger strain and a right hand contusion,
which “appeared to qualify as work related.” The opinions of Dr. Cooper and Dr. Roberts that
the diagnosed conditions appeared to be work related are couched in speculative terms and thus
of diminished probative value.18 Further, neither physician provided any rationale regarding
causation. A mere conclusion without the necessary rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet a claimant’s burden of proof.19
In reports dated April through July 1, 2013, Dr. Emad diagnosed a tendinoligamentous
injury of the right elbow and wrist, right elbow lateral epicondylitis and cubital tunnel syndrome,
right carpal tunnel syndrome, right wrist derangement, chronic pain and disability and an
adjustment reaction. He attributed appellant’s right elbow and wrist conditions to her
October 10, 2012 work injury based on her history and the subjective and objective findings.
Dr. Emad’s opinion on causal relationship is of limited probative value as he did not provide
adequate medical rationale in support of his conclusions.20 He did not describe appellant’s injury
in any detail or explain how being struck by two mail packets caused or aggravated conditions
such as carpal tunnel syndrome and elbow epicondylitis. Such rationale is particularly necessary
given the minimal objective findings contemporaneous to the injury.
16

Id.

17

L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

18

Id.

19

See Beverly A. Spencer, 55 ECAB 501 (2004).

20

See S.S., 59 ECAB 315 (2008); William C. Thomas, 45 ECAB 591 (1994).

6

On appeal, appellant argues that OWCP should accept that she sustained an employment
injury. An award of compensation, however, may not be based on surmise, conjecture,
speculation or upon her own belief that there is a causal relationship between her claimed
condition and her employment.21 Appellant must submit a physician’s report in which the
physician reviews those factors of employment identified by her as causing his condition and,
taking these factors into consideration as well as findings upon examination and the medical
history, explain how employment factors caused or aggravated any diagnosed condition and
present medical rationale in support of his or her opinion.22 She failed to submit such evidence
and therefore failed to discharge 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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on
October 10, 2012 in the performance of duty, as alleged.

21

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

22

Supra note 15 at 734 (2006); Robert Broome, 55 ECAB 339 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 08-1837
Issued: February 17, 2009

Case Submitted on the Record

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

JURISDICTION
On June 18, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ hearing representative’s merit decision dated June 5, 2008. 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 appellant received an overpayment of compensation in the
amount of $843.87; and (2) whether appellant was at fault in the creation of the overpayment
such that it was not subject to waiver.
FACTUAL HISTORY
On July 11, 2007 appellant then a 47-year-old letter carrier, filed a traumatic injury claim
alleging that he sustained multiple injuries in an employment-related motor vehicle accident.
The Office accepted appellant’s claim for tear of the left medial meniscus, back strain and left
shoulder strain. It informed appellant of his obligation to provide notification if he return to
work. The Office stated, “If you receive a compensation check which includes payment for a

period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
In a letter dated October 2, 2007, the Office entered appellant on the periodic rolls and
informed him that he would receive a regular payment from September 30 to October 27, 2007
in the amount of $2,625.37. It again instructed appellant to provide immediate notification if he
returned to work.
Appellant returned to work on October 19, 2007. The Office noted that appellant
received compensation through October 27, 2007 and that he received an overpayment in the
amount of $843.88. By letter dated October 26, 2007, it informed appellant of a preliminary
finding that he had received an overpayment in the amount of $843.88 as he returned to work on
October 19, 2007 and received compensation benefits for wage-loss compensation through
October 27, 2007. The Office found that appellant was at fault in the creation of the
overpayment as he knew or should have known that he was not entitled to compensation for
wage loss while he was working.
Appellant requested a prerecoupment hearing and submitted financial information. He
indicated that his monthly income was $3,781.00 and that his monthly expenses were $3,278.00.
Appellant testified at his oral hearing on March 17, 2008 and stated that he was unaware that he
received an overpayment as he returned to work in the middle of a pay period and his wages
from the employing establishment was approximately half of the normal amount. The hearing
representative allowed appellant 30 days to submit additional financial information. By decision
dated June 5, 2008, the hearing representative affirmed the Office’s preliminary determination
that appellant had received an overpayment of compensation in the amount of $843.87, that he
was at fault in the creation of the overpayment and that the overpayment was not therefore
subject to waiver.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that 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. A
claimant, however, is not entitled to receive temporary total disability and actual earnings for the
same period.2 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 Office issued appellant a periodic rolls payment covering the period September 30 to
October 27, 2007. Appellant returned to work on October 19, 2007. He is not entitled to receive
1

5 U.S.C. §§ 8101-8193, 8102(a).

2

Id. at § 8116(a).

3

Danney E. Haley, 56 ECAB 393, 400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).

2

both wages from the employing establishment and wage-loss compensation from the Office for
the same period October 19 through 27, 2007. Appellant has therefore received an overpayment
of compensation. The Office calculated this overpayment in the amount of $843.87 and
appellant has not contested the amount. The Board finds that appellant has received an
overpayment of compensation in the amount of $843.87 for the period October 19
through 27, 2007.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act4 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”
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 or she
received 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 applied the third standard to appellant’s actions in finding that he was at fault
in the creation of the overpayment and that the overpayment was not therefore subject to waiver.
Appellant received a letter from the Office dated October 2, 2007 which stated that he would
receive a regular periodic rolls payment covering the period September 30 to October 27, 2007 in
the amount of $2,625.37. Appellant returned to work on October 19, 2007 and knew or should
have known based on the information contained in the August 31 and October 2, 2007 letters that
he was not entitled to the entire amount of $2,625.37 received as he had returned to work and
earned wages beginning on October 19, 2007. The Board finds that appellant was at fault in the
creation of the $843.87 overpayment and that this overpayment is not subject to waiver. The
4

5 U.S.C. § 8129(b).

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.433(b).

3

Board notes that it does not have jurisdiction to review the Office’s finding that the overpayment
would be recovered in a lump sum. The Board’s jurisdiction is limited to reviewing those cases
where the Office seeks recovery from continuing compensation under the Act.7
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $843.87, that he was at fault in the creation of the overpayment and that the overpayment may
not be waived.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

Judith A. Cariddo, 55 ECAB 348, 353 (2004).

4


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

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

Docket No. 10-2020
Issued: June 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 3, 2010 appellant’s counsel timely appealed the July 6, 2010 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the termination of
compensation and medical benefits. Pursuant to the Federal Employees’ Compensation Act1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after the Office issued its July 6, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time the Office rendered its final
decision. 20 C.F.R. § 501.2(c)(1) (2010).

ISSUE
The issue is whether the Office properly affirmed the termination of appellant’s income
and medical benefits because her accepted employment injury had resolved as of
September 30, 2008.
FACTUAL HISTORY
Appellant, a 53-year-old supervisory transportation security officer, sustained an injury in
the performance of duty on March 31, 2008 while moving stanchions. She reported experiencing
severe pain in both shoulders and in her lower back. Appellant was off work for approximately
three weeks following her injury.3 After initially denying the claim, the Office accepted the
March 31, 2008 employment injury for neck, lumbar and thoracic sprains, left shoulder
acromioclavicular and supraspinatus sprains and temporary aggravation of degenerative cervical
and lumbar intervertebral discs. The January 6, 2010 decision accepting appellant’s claim also
found that the above-noted conditions had resolved as of September 30, 2008, six months after
the date of injury.
The Office based its decision on the July 28, 2009 report of Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon and Office referral physician, who found that the March 31,
2008 employment injury consisted of a soft tissue strain of the cervicothoracic and lumbar
regions, in addition to a left shoulder strain. Dr. Swartz reported evidence of underlying disc
degeneration at L4-S1 with mild central disc protrusions. He also noted evidence of
degenerative changes in the left shoulder and cervical spine.4 Dr. Swartz indicated that the
March 31, 2008 employment injury caused only a temporary aggravation of appellant’s
underlying cervical, lumbar and left shoulder degenerative conditions. There was no evidence of
any permanent changes referable to the March 31, 2008 injury, and Dr. Swartz surmised that the
temporary aggravation would not have been expected to continue longer than approximately six
months from the date of injury. Dr. Swartz explained that his physical examination revealed no
valid findings or residuals referable to the March 31, 2008 injury. Many of appellant’s responses
on physical examination were either of questionable validity or medically invalid. Dr. Swartz
indicated that appellant’s prognosis with respect to her actual injuries was favorable. However,
appellant’s prognosis with respect to observed chronic pain behavior was less favorable.5
Dr. Swartz found that appellant’s employment-related total disability ceased as of April 24,
2008, and she was currently capable of performing her usual job.6

3

Appellant accepted a limited-duty assignment effective April 24, 2008.

4

Appellant had a prior history of multilevel cervical disc herniation for which she underwent surgery on
March 6, 2007.
5

Appellant’s then-current prescription pain medications included morphine and Oxycodone. Dr. Swartz stated
there was no indication for either of these two different types of higher risk narcotics.
6

Dr. Swartz imposed a 35- to 40-pound weight restriction with respect to pushing, pulling and lifting. However,
he did not attribute these particular limitations to appellant’s March 31, 2008 accepted employment injury.

2

Appellant’s treating physicians, including Dr. Jeremy M. Lipshutz, continued to diagnose
lumbar disc disorder and restricted her to limited-duty work on the premise that performing her
normal duties would aggravate her condition and increase appellant’s pain.7 In a July 27, 2009
report, Dr. Lipshutz indicated that he had been seeing appellant since March 31, 2008 when she
injured herself moving stanchions. He noted that appellant injured her lower back and bilateral
shoulders, right greater than left. Dr. Lipshutz also noted a previous back injury that was
asymptomatic prior to March 31, 2008. An April 2, 2008 lumbar magnetic resonance imaging
(MRI) scan revealed early disc degeneration, which Dr. Lipshutz explained was fairly typical for
someone appellant’s age. Dr. Lipshutz also noted that the MRI scan showed a central disc
herniation at L4-5 and L5-S1, which “could” be a result of appellant’s injury. He reported other
MRI scan findings relative to appellant’s hips and right shoulder which were either “consistent
with” or “most likely” related to her injuries. Dr. Lipshutz concluded that, based on history,
physical and imaging studies, appellant’s condition was consistent with the injury she described
on March 31, 2008.
Dr. John S. Thalgott, a Board-certified orthopedic surgeon, examined appellant on
March 9, 2010 and reviewed an almost two-year-old lumbar MRI scan. He diagnosed internal
disc disruption at L5-S1, with bilateral radicular complaints. Dr. Thalgott proposed surgical
intervention. Although he characterized appellant’s condition as having occurred on a
“traumatic basis,” he did not identify a specific date of injury or describe a particular mechanism
of injury.
In an April 8, 2010 report, Dr. Thalgott commented on Dr. Swartz’s opinion. He noted
that Dr. Swartz clearly and correctly pointed out that a sprain/strain should last a maximum of
six months. However, appellant’s symptoms had unfortunately endured for two years and were
much more severe than a sprain/strain. Dr. Thalgott found appellant’s symptoms much more
compatible with a diagnosis of internal disc disruption superimposed on an age-appropriate
lumbar degenerative condition. He recommended a discography at L5-S1 to assist in the
diagnosis and determination of the particular symptomatic segment of the lumbar spine.
Dr. Thalgott reiterated that appellant’s symptoms and duration were incompatible with a simple
sprain/strain of the lumbar spine. He noted that appellant’s preexisting degenerative disease was
asymptomatic prior to the March 31, 2008 industrial accident. Dr. Thalgott did not otherwise
describe the purported mechanism of injury.
By decision dated July 6, 2010, the Branch of Hearings & Review affirmed the Office’s
January 6, 2010 decision.
LEGAL PRECEDENT
Where the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.8 Having determined that an employee has a disability
7

Appellant was regularly seen at the Las Vegas Pain Institute & Medical Center. In addition to Dr. Lipshutz, her
physicians included Dr. Daniel E. Fabito, Dr. Godwin O. Maduka, Dr. Brian T. Le and Dr. Sudhir S. Khemka, all of
whom are Board-certified anesthesiologists specializing in pain medicine.
8

Curtis Hall, 45 ECAB 316 (1994).

3

causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has either ceased or that it is no longer related to the employment.9
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.10 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.11 Once it has properly modified or terminated benefits, the
burden of reinstating benefits shifts to the employee.12
ANALYSIS
Based on Dr. Swartz’s July 28, 2009 examination findings, the Office accepted
appellant’s claim for neck, lumbar and thoracic sprains, left shoulder acromioclavicular and
supraspinatus sprains, and temporary aggravation of degenerative cervical and lumbar
intervertebral discs. It also relied upon Dr. Swartz’s opinion as a basis for finding as of
September 30, 2008, appellant no longer had any residuals of her accepted March 31, 2008
employment injury. Dr. Swartz explained that appellant’s March 31, 2008 injury consisted of a
soft tissue strain of the cervicothoracic and lumbar regions, in addition to a left shoulder strain.
There was also evidence of preexisting degenerative changes in the lumbar spine, left shoulder
and cervical spine. Dr. Swartz indicated that appellant’s March 31, 2008 injury caused only a
temporary aggravation of her underlying cervical, lumbar and left shoulder degenerative
conditions. He found no evidence of any permanent changes referable to the March 31, 2008
injury. Moreover, Dr. Swartz explained that the temporary aggravation would not have been
expected to continue longer than approximately six months from the date of injury. His physical
examination revealed no valid findings or residuals referable to the March 31, 2008 injury.
Dr. Swartz characterized appellant’s responses on physical examination as either of questionable
validity or medically invalid. According to him, appellant’s employment-related total disability
ceased as of April 24, 2008 and her accepted conditions did not currently preclude her from
performing her usual job.
Dr. Lipshutz and his colleagues continued to diagnose lumbar disc disorder. They also
restricted appellant to limited-duty work because performing her normal duties would aggravate
her low back condition. In his July 27, 2009 report, Dr. Lipshutz indicated that appellant’s
lumbar disc herniations “could” be a result of her injury. Then, without further explanation, he
stated that appellant’s condition was consistent with the injury she described on March 31, 2008.
Neither Dr. Lipshutz nor his colleagues have adequately explained how appellant’s ongoing
lumbar complaints are causally related to her accepted employment injury. Disc herniations at
L4-5 and L5-S1 have not been accepted as arising from appellant’s March 31, 2008 employment

9

Jason C. Armstrong, 40 ECAB 907 (1989).

10

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

11

Calvin S. Mays, 39 ECAB 993 (1988).

12

Joseph A. Brown Jr., 55 ECAB 542, 544 n. 5 (2004).

4

injury. With respect to her low back, the Office only accepted lumbar sprain and temporary
aggravation of degenerative lumbar intervertebral disc.13
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.14 The mere fact that appellant’s preexisting
degenerative condition was asymptomatic prior to the March 31, 2008 employment injury does
not establish that her reported symptoms some two years post injury are causally related.
Moreover, Dr. Swartz was not entirely convinced that appellant’s reported symptoms and her
responses on physical examination were entirely genuine or medically valid. The Board finds
that the Office properly determined that appellant’s accepted conditions had resolved as of
September 30, 2008 based on Dr. Swartz’s opinion.
Once the Office has properly modified or terminated benefits, the burden of reinstating
benefits shifts to the employee.15 Dr. Thalgott’s March 9 and April 8, 2010 reports do not
establish that appellant’s lumbar internal disc disruption is causally related to her March 31,
2008 employment injury. He noted that appellant was asymptomatic prior to her March 31, 2008
industrial accident. Again, a temporal relationship alone will not suffice for purposes of
establishing causal relationship. Furthermore, Dr. Thalgott did not identify a specific mechanism
of injury. Consequently, his report does not appear to have been based on a complete factual
background. Appellant has not established that she has any continuing employment-related
residuals on or after September 30, 2008.
CONCLUSION
The Office properly terminated medical benefits and entitlement to future wage-loss
compensation effective September 30, 2008.

13

There appears not to be any disagreement with respect to the resolution of appellant’s left shoulder, cervical
and thoracic conditions.
14

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
15

Joseph A. Brown Jr., 55 ECAB 542, 544 n. 5 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 3, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Vallejo, CA, Employer
__________________________________________

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Appearances:
Jeffery S. Fultz, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1271
Issued: November 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 22, 2017 appellant, through his representative, filed a timely appeal from a
December 19, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective May 4, 2015 as he no longer had any
1

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

5 U.S.C. § 8101 et seq.

residuals or disability causally related to the accepted employment injuries; and (2) whether
appellant met his burden of proof to establish continuing residuals or disability of his
employment injuries after May 4, 2015.
On appeal appellant’s representative contends that the report of Dr. Fulton S. Chen, a
Board-certified physiatrist, should be accorded the weight of the medical evidence as he
provided a well-rationalized opinion on causal relationship between appellant’s condition and
employment. He asserts that Dr. J. Hearst Welborn, Jr., a Board-certified orthopedic surgeon
and an OWCP referral physician, did not provide a well-rationalized opinion and ignored the
statement of accepted facts (SOAF).
FACTUAL HISTORY
On January 10, 2012 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day while delivering mail he injured his left foot and
ankle when, after feeling pressure while walking on an uneven concrete slab, he almost slipped
and fell down. He stopped work on January 11, 2012 and returned to modified duty on
January 12, 2012. Appellant stopped worked again on June 1, 2013 because no work was
available. He has not returned to work.
OWCP accepted the claim for contusion of the left foot and left plantar fibromatosis. It
paid wage-loss compensation benefits.
OWCP received an April 9, 2014 progress report from Dr. David Guzman, an attending
podiatrist, in which he noted appellant’s complaint of pain in the left heel. On physical
examination, Dr. Guzman diagnosed left plantar fasciitis and calcaneal spur. He requested
authorization to perform surgery, noting that conservative treatment had failed.
On May 20, 2014 OWCP referred appellant, together with a SOAF, the medical record,
and a list of questions, to Dr. Welborn for a second opinion to determine whether the proposed
surgery should be authorized and whether appellant’s accepted conditions had resolved. The
SOAF listed the accepted conditions as contusion of the left foot and left plantar fibromatosis
(fasciitis).
In a June 18, 2014 medical report, Dr. Welborn reviewed the SOAF and medical record.
He noted a history of appellant’s accepted employment injuries and work history. Dr. Welborn
also noted his complaint of moderate off and on left plantar calcaneal pain. He reported
essentially normal findings on physical examination of the left foot. Dr. Welborn assessed left
plantar fasciitis, but noted that there were no objective findings of this condition, including no
significant heel tenderness on examination. He advised that appellant’s subjective complaints
were moderate intermittent foot pain with standing more than one hour. Dr. Welborn related that
he could not explain how appellant’s work-related contusion led to plantar fasciitis. He indicated
that it would be unusual for plantar fasciitis to be caused by trauma. Dr. Welborn further
indicated that appellant may have made good improvement from his last visit to his provider. He
opined that the left foot contusion had resolved as of his examination on that day. Dr. Welborn
maintained that appellant had no nonindustrial or preexisting disability. He did not recommend
surgery because no further treatment was necessary. Dr. Welborn related that appellant’s long-

2

term prognosis was poor. He concluded that appellant could return to his regular work with no
restrictions.
OWCP, on September 18, 2014, requested that Dr. Guzman review Dr. Welborn’s report
and provide a well-rationalized opinion on whether appellant had any continuing employmentrelated residuals and whether he had any disagreement with Dr. Welborn’s opinion regarding the
requested surgery and appellant’s work capacity.
On January 26, 2015 Dr. Guzman responded to OWCP’s September 18, 2014 letter. He
disagreed with Dr. Welborn’s opinion that the accepted left foot contusion had resolved.
Dr. Guzman advised that appellant’s plantar fasciitis was still symptomatic based on an objective
finding of pain. He further advised that this condition was caused by the January 10, 2012
employment injury. Dr. Guzman again recommended surgery to treat the diagnosed condition
because conservative treatment had failed. In a January 23, 2015 progress report, he again noted
an objective finding of pain in the left medial tubercle calcaneus and restated his diagnosis of
plantar fasciitis. On that same day Dr. Guzman completed a work capacity evaluation in which
he advised that appellant was unable to perform his usual job or work eight hours a day. He
indicated that appellant required sedentary work and that his restrictions were permanent unless
he underwent surgery. OWCP received additional progress reports dated June 13, 2014 to
March 5, 2015 from Dr. Guzman which reiterated his diagnosis of left plantar fasciitis.
On March 17, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Welborn’s opinion. Appellant was afforded 30 days to submit
additional evidence or argument.
In an April 6, 2015 letter, appellant disagreed with the proposed action. He contended
that he was unfairly treated by Dr. Welborn based on his race. Appellant also contended that the
physician was not a podiatrist and did not conduct a thorough medical examination. He
requested authorization to undergo surgery performed by a podiatrist.
On April 13, 2015 OWCP received an April 2, 2015 primary treating physician’s
permanent and stationary report from Dr. Guzman. He reported findings on physical and x-ray
examination and restated his diagnosis of left plantar fasciitis. Dr. Guzman determined that
appellant had eight percent permanent impairment of the left foot. He placed a checkmark in a
box marked “yes” indicating that appellant was permanently disabled due to an employment
injury. Dr. Guzman continued to recommend surgery as appellant had not responded to
conservative care. He concluded that appellant could return to modified work with restrictions.
By decision dated May 4, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day. It found that the weight of the medical evidence rested
with Dr. Welborn’s June 18, 2014 opinion.
OWCP received an April 16, 2015 report from Dr. John A. Ambrosino, a podiatric
surgeon, in which he examined appellant and opined that appellant had work-related left lower
extremity tarsal tunnel syndrome. Dr. Ambrosino recommended that appellant’s claim should be
expanded to include this condition.

3

On May 26, 2015 appellant requested reconsideration of the May 4, 2015 decision. He
submitted an April 30, 2015 report from Dr. Guzman. Dr. Guzman reiterated his diagnosis of
left foot plantar fasciitis, opined that appellant had residuals of his accepted conditions which
were permanent, and recommended surgery. He advised that appellant could perform semisedentary work with restrictions.
OWCP, in an August 21, 2015 decision, denied modification of the May 4, 2015
decision. It found that the medical evidence submitted was insufficient to outweigh
Dr. Welborn’s opinion.
OWCP received a January 29, 2016 report from Dr. Fulton S. Chen, Board-certified in
physical and rehabilitative medicine, in which he provided results on examination and opined
that appellant continued to have residuals of his work-related left plantar fasciitis. He advised
that appellant could continue his usual and customary duties, albeit with some difficulty, but that
he might require occasional modified work.
By letter dated June 13, 2016, appellant requested reconsideration of the August 21, 2015
decision. He contended that Dr. Welborn’s opinion was not entitled to the weight of the medical
evidence as it was not supported by medical evidence or rationale. Appellant further contended
that he disregarded the SOAF which listed plantar fasciitis as an accepted condition in his claim.
He asserted that OWCP, in the questions it presented to Dr. Welborn, did not include the
diagnosis of tarsal tunnel syndrome, to which it referred in affirming its prior decision. Lastly,
appellant asserted that Dr. Chen’s opinion outweighed the nonspecific and unscientific opinion
of Dr. Welborn as it provided medical rationale to establish the causal relationship between the
plantar fasciitis and appellant’s employment.
In a December 19, 2016 decision, OWCP denied modification of the August 21, 2015
decision. It found that Dr. Chen’s report was insufficient to outweigh Dr. Welborn’s opinion.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of proof to justify
termination or modification of compensation benefits.3 OWCP may not terminate compensation
without establishing that the disability has ceased or that it was no longer related to the
employment.4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as of May 4, 2015. OWCP accepted that he
sustained left foot contusion and left plantar fibromatosis (fasciitis) while in the performance of
3

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Charles E. Minniss, 40 ECAB 708, 716 (1989).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

duty. OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
medical opinion of Dr. Welborn, a second opinion physician.
The Board finds, however, that Dr. Welborn’s report is insufficiently well reasoned to
establish that appellant no longer had any residuals or disability of his accepted employment
injuries. Regarding appellant’s accepted left plantar fasciitis, Dr. Welborn diagnosed left plantar
fasciitis, noting a lack of objective findings of this condition. He related that he could not
explain how appellant’s condition was caused by the work-related left foot contusion. However,
appellant’s condition was accepted by OWCP for left plantar fasciitis and this was reflected on
the SOAF provided to Dr. Welborn. The Board finds that Dr. Welborn’s report is of diminished
probative value, as his opinion disregarded a critical element of the SOAF. The Board notes that
it is the function of the medical expert to give an opinion only on medical questions, not to find
facts.6 In addition, the Board has held that medical conclusions based on inaccurate or
incomplete histories are of diminished probative value.7 As Dr. Welborn did not give due regard
to the SOAF, his opinion was not based on a proper factual background. His report is
insufficient to constitute the weight of the medical opinion evidence to establish that appellant no
longer had any employment-related residuals or disability. OWCP, therefore, did not meet its
burden of proof to terminate appellant’s benefits.8
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective May 4, 2015.9

6

S.J., Docket No. 09-1355 (issued May 20, 2010); Paul King, 54 ECAB 356 (2003).

7

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

8

Sarah A. Lawson, Docket No. 04-825 (issued July 13, 2004).

9

In light of the above findings and conclusion, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 7, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL VINSON VETERANS
ADMINISTRATION MEDICAL CENTER,
Dublin, GA, Employer
__________________________________________

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

Docket No. 12-301
Issued: July 2, 2012

Case Submitted on the Record

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

JURISDICTION
On November 28, 2011 appellant, through her attorney, filed a timely appeal from
decisions of the Office of Workers’ Compensation Programs (OWCP) dated July 12 and
October 14, 2011 that denied her claim. 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 sustained an injury in the performance of duty on
August 16, 2010.
On appeal appellant’s attorney asserts that the decisions are contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 26, 2010 appellant, then a 45-year-old nursing assistant, filed a traumatic
injury claim alleging that at 11:20 a.m. on August 16, 2010 she had lower back pain, stood up to
walk from behind a desk to get into a wheelchair, and fell to the floor on both knees due to pain
and numbness in both legs. She stopped work that day. The employing establishment
controverted the claim, noting that appellant reported to work at approximately 8:00 a.m. on
August 16, 2010, after being off work due to a prior accepted lumbar herniated disc.2 In an
August 16, 2010 statement, Tamela White, a coworker, advised that appellant came to her
location at 8:45 a.m. and from the time she arrived, complained of low back pain and leg
numbness. She indicated that she offered appellant a pillow, and that appellant complained that
the pain was getting worse. Ms. White then went to get a wheel chair to assist appellant. She
stated that, when appellant got up to get into the chair, her back was to appellant and when she
turned around appellant was on the floor on her knees in an awkward position. Ms. White called
for help and two nurses came to assist her. She then escorted appellant outside. Jan Baeumel, an
administrative support assistant, stated that appellant called her at approximately 11:15 a.m.,
stating she could not work any longer due to pain and that Ms. White was going to accompany
her outside. She related that Ms. White called her at about 11:20 a.m. informing her that
appellant had fallen and was going to her personal physician.
In an August 20, 2010 statement, appellant related that when she reported to work on
August 16, 2010 she had to walk a distance that caused her back to start hurting and that, after
sitting from 8:00 a.m. to 11:20 a.m., she could no longer stand the increased back pain and leg
pain and numbness and that when she stood to get in a wheelchair her legs gave out and she fell.
She submitted a duty status report dated August 16, 2010 in which Dr. Dwayne Clay, a Boardcertified physiatrist, advised that appellant could not work. Dr. Clay stated that her back pain
was exacerbated that day due to a fall when her lower extremities gave way due to weakness and
severe pain. An August 20, 2010 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated an L4-5 disc herniation that caused a small impression on the left ventral aspect of
the thecal sac and left L4 nerve root.
On September 23, 2010 OWCP informed appellant of the type of evidence needed to
support her claim. In statements dated September 26 and 27, 2010, appellant again explained
that when she returned to work following an accepted lumbar herniated disc condition, her back
pain became so severe and she was going to leave but when she stood to get in a wheelchair her
legs became numb, gave way and she fell onto both knees. She indicated that the desk chair she
was provided on August 16, 2010 was inadequate and that her left knee had begun to give her
trouble. Appellant stated that she was now having back injections and that the prolonged sitting,
standing and walking on August 16, 2010 caused the pain. In disability slips dated August 26
and September 28, 2010, Dr. Clay indicated that appellant should be out of work until
October 30, 2010, or until epidural injections were completed. In duty status reports dated
August 26 to October 20, 2010, he indicated that appellant was totally disabled. Dr. Clay noted
that appellant reported a history that on her first day back at work, her back and legs went numb
2

Under OWCP file number xxxxxx204, appellant’s claim was accepted for a lumbar sprain and herniated disc at
L4-5 with radiculopathy.

2

and she fell. He diagnosed lumbar radiculopathy and a herniated disc at L4-5. On October 18,
2010 appellant indicated that she was having great pain and swelling in her knees and behind her
knees.
By decision dated November 19, 2010, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that the diagnosed condition was causally related to
the employment incident of August 16, 2010. On December 9, 2010 appellant requested a
review of the written record. In statements she noted her L4-5 disc herniation with nerve root
compression and stated that she now had left knee swelling and popping and a torn meniscus in
the right knee. Appellant again described the August 16, 2010 fall. In a duty status report dated
November 17, 2010, Dr. Clay again advised that appellant could not work. In duty status reports
dated January 31 and March 7, 2011, he stated that she could work four hours a day, as tolerated.
In a March 31, 2011 decision, an OWCP hearing representative affirmed the
November 19, 2010 decision. On April 9, 2011 appellant requested reconsideration. She stated
that she submitted a medical report, but this is not in the case record. In a nonmerit decision
dated April 19, 2011, OWCP denied appellant’s reconsideration request, noting that a medical
report was not forwarded to OWCP.
On June 31, 2011 appellant again requested reconsideration. In an April 26, 2011 report,
Dr. Clay noted a history that appellant was originally injured at work on February 1, 2007 and
the claim was accepted for a herniated disc at L4-5. He stated that she also developed lower
extremity weakness with internal derangement of her right knee. Dr. Clay opined that the fall at
work on August 10, 2010 was due to give away weakness from the original injury and the fall
exacerbated her radicular symptoms, especially on the left. In duty status reports dated May 2
and June 27, 2011, Dr. Clay indicated that appellant could work four hours a day with
restrictions.
In a merit decision dated July 12, 2011, OWCP denied appellant’s claim on the grounds
that she did not establish that she sustained an injury in the performance of duty. On August 2,
2011 appellant requested reconsideration. She stated that she was told to file a claim for a new
injury. Appellant indicated that she had been out of work for eight months, and that both she and
Dr. Clay felt this was not a new injury but caused by her previous back condition. In duty status
reports dated July 25 and August 22, 2011, Dr. Clay indicated that appellant could work four
hours of restricted duty daily and in disability slips dated August 9 and September 19, 2011, he
indicated that she could work four hours or less through October 31, 2011.
In an October 14, 2011 decision on the merits of appellant’s claim, OWCP denied
modification of the prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally

3

related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not establish that she sustained a new injury on
August 16, 2010. The evidence of record supports that on that day she returned to work at about
8:00 a.m. after an absence due to an accepted herniated lumbar disc with radiculopathy.
Appellant complained of increasing low back pain and wanted to go home, and a coworker went
to get a wheelchair to assist her getting to her car. When she rose from a desk, her legs were
numb and gave way. Appellant fell to her knees. She left work and did not return.

3

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

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

5

Gary J. Watling, supra note 3.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

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

4

While it is clear that appellant fell at work on August 16, 2010, both her statements and
the medical evidence suggest that the cause of her fall was pain due to her previous work injury.9
She had only been back at work for a few hours after an absence due to the previous injury when
she fell. In statements, appellant indicated that the severe pain from the previous herniated disc
caused her to leave work on August 16, 2010, and it was upon arising due to this pain that she
fell. She stated that she only filed a claim for a new injury because she was told to do so.
Dr. Clay, an attending physiatrist, advised on April 26, 2011 that appellant’s fall on August 16,
2010 was due to give way weakness caused by the previously accepted herniated disc. The
Board therefore concludes that the evidence does not establish that appellant sustained a new
injury or medical condition caused by the fall at work on August 16, 2010.
However, upon return of the case record, OWCP should further develop claim number
xxxxxx304 to determine if appellant sustained a recurrence of disability or consequential injury
on August 16, 2010 due to the previously accepted herniated disc at L4-5 with radiculopathy
accepted under that claim.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not sustain a new injury on August 16, 2010.

9

Supra note 2.

10

In discussing the range of compensable consequences, once the primary injury is causally connected with the
employment, Larson notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based
upon the concepts of direct and natural results and of claimant’s own conduct as an independent intervening cause.
The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury,
is compensable if it is the direct and natural result of a compensable primary injury. Larson, The Law of Workers’
Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the October 14 and July 12, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 15-1960
Issued: March 17, 2016

Case Submitted on the Record

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

JURISDICTION
On September 29, 2015 appellant, through counsel, filed a timely appeal from an
August 19, 2015 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits as of December 22, 2014; and (2) whether appellant has established
continuing disability caused by residuals of his accepted lower back condition following the
termination of compensation benefits on December 22, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 15, 2013 appellant, a 51-year-old transportation security officer, injured his
lower back when he slipped and fell on a wet surface. He filed a traumatic injury claim (Form
CA-1), which OWCP accepted for acute exacerbation of lumbar degenerative disc disease.
OWCP commenced payment for total disability on the periodic rolls as of February 9, 2014.
In a report dated February 4, 2014, Dr. Maury R. Ellenberg, Board-certified in physical
medicine and rehabilitation, noted that appellant was experiencing severe back pain, right lower
extremity pain, and some right leg pain, with a possible radicular component. He reported that
his goal was to return appellant back to work. Dr. Ellenberg scheduled appellant to undergo a
magnetic resonance imaging (MRI) scan of his lumbar spine, in addition to an electromyelogram
(EMG).
The February 19, 2014 MRI scan of the lumbar spine demonstrated extensive artifacts
from metallic hardware stemming from a previous L5-S1 fusion. This limited the evaluation of
the L4-5 and L5-S1 disc space levels. The study also found a small-to-moderate broad-based
disc herniation centrally and eccentric to the right L4-5 level, which, along with degenerative
changes, led to marked spinal stenosis at L4-5 and mild-to-moderate bilateral neural foramen
narrowing.
In a February 25, 2014 report, Dr. Ellenberg advised that appellant had an L5-S1 fusion
procedure in approximately 2000. He noted that on physical examination appellant displayed a
large amount of pain behavior and reaction. Dr. Ellenberg reported that an EMG test of
appellant’s lumbar paraspinals and lower extremities showed some positive waves in both
lumbar paraspinals around the areas of the scar from the 2000 surgery. These were normal
findings related to the 2000 surgery. Dr. Ellenberg reported that appellant had lumbar disc
displacement with no definitive findings of radiculopathy in his lower extremities. He diagnosed
a broad-based L4-5 disc protrusion, diffuse centrally and slightly to the right. Dr. Ellenberg
opined that these findings did not correspond with the lower back symptoms appellant displayed
on examination. He asserted that, while appellant did have some spinal stenosis at L4-5, this did
not correspond well with his current symptom complex.
To determine appellant’s current condition and ascertain whether he still suffered
residuals from his accepted conditions, OWCP referred him for a second opinion examination
with Dr. Emmanuel N. Obianwu, Board-certified in orthopedic surgery. In a June 6, 2014 report,
Dr. Obianwu reviewed the medical history and the statement of accepted facts, reported findings
on examination, and concluded that appellant had no residuals from the July 15, 2013
employment injury. He noted that Dr. Ellenberg, appellant’s treating physician, did not believe
that the description of the broad-based L4-5 disc protrusion reflected appellant’s current
symptomatology. Dr. Obianwu made the following diagnoses: status post fusion L5 to S1 with
pedicle screws, 2000; multilevel mild-to-moderate degenerative disc disease at L4-5 and L3-4;
spinal stenosis at L4-5; lumbar spondylosis with moderate bilateral neural foramen stenosis; disc
bulge at L4-5; and overt symptom magnification.
Dr. Obianwu noted that appellant had experienced low back problems for a long period
of time, which he attributed to extensive degenerative changes in his lumbar spine. He opined

2

that appellant did not suffer from any active residuals of the accepted condition of acute
exacerbation of lumbar degenerative disc disease.
On examination appellant showed no tightness of the muscles of the lumbar spine and
had no overt neurologic findings. Dr. Obianwu asserted that his findings indicated that any acute
exacerbation of the lumbar degenerative disc disease which occurred in July 2013 had subsided
and resolved. He opined that appellant did not have any residuals of the July 15, 2013 work
injury. Although Dr. Obianwu found appellant not medically capable of returning to his date-ofinjury job, he determined that was due to his preexisting problems. Dr. Obianwu reported that
appellant was treated conservatively for a relatively long period of time and that his inability to
perform the full duties of a transportation security officer had nothing to do with the July 15,
2013 acute exacerbation of the lumbar degenerative disc disease.
On November 14, 2014 OWCP issued a notice of proposed termination of compensation.
It found that the weight of the medical evidence, as represented by the opinion of Dr. Obianwu,
the second opinion physician, established that his accepted acute exacerbation of lumbar
degenerative disc disease had resolved and that he had no further residuals from the July 15,
2013 work injury. OWCP afforded appellant 30 days to submit additional evidence or legal
argument in opposition to the proposed termination.
In reports dated October 2014, Dr. Aaron J. Blanzy, an osteopath and appellant’s primary
care physician, noted that appellant experienced low back pain and stated findings on
examination. He found that the pain appellant was experiencing now was worse than that he had
before his fall.
By decision dated December 22, 2014, OWCP terminated appellant’s compensation,
finding that Dr. Obianwu’s referral opinion represented the weight of the medical evidence.
Appellant, through his counsel, requested an oral hearing, which was held on
July 1, 2015.
Following the termination of benefits, appellant submitted handwritten medical notes
prepared by Dr. Blanzy from December 2014. These notes advised that appellant experienced
low back pain and stated findings on examination, but are largely illegible.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the
December 22, 2014 termination decision.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 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

2

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

3

employment.3 This includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.5
ANALYSIS -- ISSUE 1
In this case, OWCP based its decision to terminate appellant’s compensation on the
opinion of Dr. Obianwu, the OWCP second opinion physician. The Board finds that OWCP met
its burden of proof.
Dr. Obianwu, the second opinion physician, in his June 6, 2014 report, found that
appellant’s accepted acute exacerbation of lumbar degenerative disc disease had ceased and that
he no longer had any residuals from this condition. He explained that appellant had experienced
low back problems for a long period of time due to extensive degenerative changes in his lumbar
spine. Dr. Obianwu opined that these changes, however, were secondary to the underlying
degenerative changes which had been present for many years. He found that appellant no longer
suffered residuals of the accepted acute exacerbation of lumbar degenerative disc disease and
that the acute exacerbation of the lumbar degenerative disc disease which occurred in July 2013
had subsided and resolved.
Dr. Obianwu opined that, while appellant was not medically capable of returning to his
date-of-injury job, this was due to his preexisting problems.
The Board finds that Dr. Obianwu’s opinion was well rationalized and based on an
accurate history and examination findings. It established that appellant no longer was disabled
and had no residuals due to the accepted condition. The Board has held that the opinion of a
second opinion physician could constitute the weight of the medical evidence to terminate
compensation benefits if it was of probative value with respect to its conclusions. The opinion
must be based on a proper factual and medical history and provide medical rationale for the
opinion that the work-related conditions had resolved by explaining that there were no objective
medical findings to indicate that the accepted work-related conditions were still active.6
Appellant’s treating physician, Dr. Ellenberg, reported on February 25, 2014 that
appellant had broad-based L4-5 disc protrusion; however, he related that these findings did not
correlate with appellant’s low back symptoms on examination. He also explained that appellant
had undergone L5-S1 fusion procedure in 2000, and the EMG findings were related to the
3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

See Del K. Rykert, 40 ECAB 284 (1988). L.J., Docket No. 14-1682 (December 11, 2015).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

See C.P., Docket No. 15-0617 (issued August 4, 2015).

4

residuals of the 2000 surgery. Dr. Ellenberg offered no opinion to substantiate that appellant had
disabling residuals of the accepted July 15, 2013 injury. Similarly, Dr. Blanzy, in his
October 14, 2014 report, related that appellant’s pain had worsened; however, he offered no
opinion as to whether appellant was disabled from residuals of the accepted condition or the
preexisting condition. These reports are therefore not sufficient to establish a conflict in the
medical opinion evidence.7
Therefore, OWCP properly found that Dr. Obianwu’s second opinion was sufficient to
establish that any residuals or disability from the accepted July 15, 2013 employment injury had
resolved.8
LEGAL PRECEDENT -- ISSUE 2
Following a proper termination of compensation benefits, the burden of proof shifts back
to the claimant to establish continuing employment-related disability.9 To establish a causal
relationship between the condition, any attendant disability, and the employment injury, an
employee must submit rationalized medical evidence based on a complete medical and factual
background, supporting such a causal relationship.10 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.11 To prevail, the claimant must establish by the weight of the reliable, probative, and
substantial evidence that he had an employment-related disability which continued after
termination of compensation benefits.12
ANALYSIS -- ISSUE 2
The issue of whether appellant has established continuing disability following
termination is a medical one, based on the medical evidence of record.13 While appellant
submitted treatment notes from Dr. Blanzy, these notes were primarily illegible and did not
provide a probative medical opinion as to whether he was disabled or currently required medical
treatment due to the employment-related condition. A mere conclusion without the necessary
medical rationale to explain how and why the physician believes that appellant still has residuals
of the accepted condition is not sufficient to meet appellant’s burden of proof.14 The medical

7

Id.

8

See V.A., Docket No. 15-1073 (issued November 25, 2015).

9

Id.

10

Supra note 7.

11

See Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

See J.A, Docket No. 15-0908 (issued August 6, 2015).

13

Supra note 12.

14

Supra note 7.

5

evidence must also include rationale explaining how the physician reached his conclusion.15 The
Board finds that appellant has failed to meet his burden of proof to establish continuing disability
after December 22, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits as of December 22, 2014. The Board finds that appellant has failed to
meet his burden to establish continuing disability after December 22, 2014.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

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

6