United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Toms River, NJ, Employer
__________________________________________

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

Docket No. 13-455
Issued: April 16, 2013

Case Submitted on the Record

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

JURISDICTION
On November 8, 2012 appellant, through counsel, filed a timely appeal from an August 2,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the issue of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 20, 2011 on the grounds that she no longer had
any residuals or disability causally related to her accepted November 12, 2009 employmentrelated injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 12, 2009 appellant, then a 66-year-old field
representative, while in the performance of duty, sustained a right ankle injury when she fell
while getting out of her car. Her claim was accepted for closed fracture of the tibia and fibula.
Appellant stopped work and received disability compensation. She was placed on the periodic
rolls.
On November 28, 2009 appellant underwent right ankle surgery. She continued to
receive medical treatment from Dr. Munir Ahmed, a Board-certified orthopedic surgeon.
Dr. Ahmed, in his June 25, 2010 report, related appellant’s complaints of worsening right
ankle pain at the medial and lateral joint line. He reviewed appellant’s history and noted her
previous right ankle fracture and degenerative joint disease. Upon examination, Dr. Ahmed
observed presence of a scar on her right lower extremity and pain on palpation. Range of motion
of the ankle was decreased. Dr. Ahmed diagnosed closed bimalleolar fracture, ankle and foot
pain and ankle/foot arthritis. He recommended appellant use a cane and boot for support.
In a July 7, 2010 computerized tomography (CT) scan report, Dr. Akhilesh Desai, a
Board-certified diagnostic radiologist, noted appellant’s history of prior right ankle trauma and
trimalleolar fracture involving the medial and posterior aspect of the tibia. He stated that the
fracture appeared healed. The examination also revealed degenerative changes at the tibiotalar
joint and irregularity of the articulating surface of the tibia. Dr. Desai reported that this was most
likely secondary to the prior injury.
In a July 27, 2010 work capacity evaluation form, Dr. Ahmed noted that OWCP accepted
appellant’s claim for closed fracture of fibula and tibula. He indicated that appellant was able to
work eight hours with restrictions of walking for four to six hours, standing for one to two hours,
and no operating a motor vehicle or climbing.
In a September 27, 2010 report, Dr. Ahmed related appellant’s complaints of moderately
improved ankle pain. He noted that appellant was being seen for status post open reduction
internal fixation for markedly displaced trimalleolar fracture dislocation of the right ankle.
Dr. Ahmed related that x-rays showed that the joint and ankle motions were well maintained.
OWCP referred appellant, together with a statement of accepted facts and the medical
record, to Dr. Kenneth Heist, a Board-certified orthopedic surgeon, for a second opinion
examination to determine the extent of her continuing employment-related residuals and
disability. In a June 9, 2011 report, he provided an accurate history of injury of the
November 12, 2009 employment injury and reviewed her history, including the statement of
accepted facts. Dr. Heist noted that a July 7, 2010 magnetic resonance imaging (MRI) scan
report of the right ankle revealed evidence of satisfactory healing. He related appellant’s
complaints of weakness and numbness in her right ankle and shooting pain in her legs. Upon
examination of the lower extremities, Dr. Heist observed that her right ankle had well-healed
previous surgical incision sites. Range of motion was dorsiflexion to 20 degrees, plantarflexion
to 40 degrees, left inversion to 30 degrees, right inversion to 40 degrees, left eversion to 15
degrees and right eversion to 10 degrees. Dr. Heist found no evidence of peripheral neuropathy

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or gross muscular weakness, atrophy, or circulatory difficulty. He diagnosed postoperative open
reduction and internal fixation for trimalleolar fracture of the right ankle. Dr. Heist reported that
there were no objective findings on examination to support her subjective complaints. He opined
that appellant had reached maximum medical improvement and concluded that no additional
orthopedic treatment was needed. Dr. Heist concluded that appellant was capable of returning to
work with no restrictions. In a work capacity evaluation form, he checked a box marked “yes”
that appellant was capable of performing her usual job with no restrictions.
On June 21, 2011 OWCP issued a notice of proposed termination of appellant’s medical
and wage-loss compensation benefits based on Dr. Heist’s June 9, 2011 report. Appellant was
advised that she had 30 days to submit additional relevant evidence or argument if she disagreed
with the proposed action.
In July 6, 2011 statements, appellant noted her disagreement with the proposed
termination of benefits. She disputed Dr. Heist’s findings and alleged that he merely pulled her
sock half way down and placed his fingers on the right side of her ankle, which was not a valid
examination. Appellant noted that he did not use any medical instruments to arrive at his
findings. She also stated that she used a cane during her visit because she cannot walk without it,
but Dr. Heist reported that she required no assistive devices to walk. Appellant explained that
she had problems driving her car because of her right ankle injury and that there were times
when she took a “bad step” and experienced intense pain for days. She alleged that her lingering
right ankle injuries prevented her from resuming her work with the Census Bureau. Appellant
submitted an internet article printout indicating that Dr. Heist agreed to a malpractice settlement
in 2006.
In a July 6, 2011 statement Peggy Silk, appellant’s sister, explained that since appellant’s
accident she had lost much of her ability and was not able to walk or stand for too long. She
stated that she drove appellant to the second opinion examination and noted that while Dr. Heist
was friendly the extent of his examination was to ask appellant to lower her sock and he felt her
ankle. Ms. Silk reported that Dr. Heist did not question appellant on her limitations or address
her complaints of right ankle pain, weakness and numbness.
Appellant submitted reports and handwritten progress notes dated December 2009
regarding her treatment for a right ankle injury.
By decision dated July 20, 2011, OWCP finalized the termination of appellant’s
compensation benefits effective July 20, 2011. It found that Dr. Heist’s June 9, 2011 report
represented the weight of the medical evidence in establishing that her accepted conditions had
ceased and that she no longer had any residuals or disability causally related to her accepted
employment injuries.
In a July 19, 2011 statement, appellant, through counsel, requested that another notice of
proposed termination be issued that clarified the termination of appellant’s medical and
compensation benefits. He also alleged that a conflict of medical opinion existed between
Drs. Ahmed and Heist.

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In a July 14, 2011 work capacity evaluation form report, Dr. Ahmed checked a box
marked “no” that appellant had not reached maximum medical improvement. He noted that
appellant had difficulty walking and needed to use a cane. Dr. Ahmed indicated that appellant
could return to work with restrictions of walking and standing with a cane, no twisting or
bending, reaching only to arm length, operating a motor vehicle for 15 minutes, pushing, pulling,
and lifting up to five pounds, and no squatting, kneeling and climbing.
On July 27, 2011 appellant, through counsel, requested an oral hearing, which was held
on November 17, 2011. Appellant noted that she had worked as a field representative at the
employing establishment for six years and described her job duties. She described the
November 12, 2009 ankle injury at work and subsequent surgery. Appellant stated that her ankle
condition was a permanent part of her life and that she could not wear regular shoes because her
ankle and foot swell up. She stated that she was unable to do her job because she could not
climb stairs, walk, and carry a briefcase and needed a cane to get around. Appellant further
noted that she disagreed with how Dr. Heist conducted his second opinion examination. Her
counsel alleged that there was a conflict in medical opinion between Drs. Ahmed and Heist
regarding whether she continued to suffer residuals of her November 12, 2009 ankle injury.
In a July 12, 2011 report, Dr. Ahmed related appellant’s complaints of worsening right
ankle pain following a fracture and noted that she still experienced pain, discomfort, stiffness,
swelling and instability in her right ankle. He noted a date of injury of November 12, 2009 and
that appellant presented with a bone fracture that moderately limited her activities. Dr. Ahmed
stated that appellant was recovering more slowly than anticipated. Examination of the right
lower extremity revealed pain on palpation and decreased range of motion of the dorsiflexion
and plantarflexion. Dr. Ahmed diagnosed worsened closed bimalleolar fracture, worsened ankle
and foot pain, and worsened ankle and foot arthritis. He noted that x-rays revealed status post
fracture of the ankle with hardware in place and degenerative arthritis of the right ankle.
Dr. Ahmed recommended weight bearing to tolerance. Appellant also submitted additional
reports from Dr. Ahmed dated December 17, 2009 to September 27, 2010.
In a December 16, 2011 statement, the employing establishment stated that it had
requested a standard issue field representative laptop for appellant which would only weigh 6.6
pounds. It also alleged that it was not unreasonable to wonder how someone could fracture a
bone, feel improved, and then two weeks later report that the pain had increased. The employing
establishment further noted that Dr. Heist was a professional who presented examination
findings and had nothing to gain by providing an opinion that was biased in any way.
In a December 29, 2011 statement, appellant responded to the employing establishment’s
comments. She described the November 12, 2009 employment incident and the right ankle
injury. Appellant reiterated that Dr. Heist did not perform any examination but just placed his
fingers on the right side of her ankle and felt the screws.
In a decision dated January 30, 2012, an OWCP hearing representative affirmed the
July 20, 2011 decision terminating appellant’s medical and wage-loss compensation benefits. It
determined that Dr. Ahmed’s reports were not sufficient to create a conflict in medical opinion
with Dr. Heist’s opinion regarding appellant’s ability to return to work because Dr. Ahmed failed
to provide any opinion on whether appellant was disabled from work as a result of the

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November 12, 2009 employment injury. The hearing representative found that the weight of the
medical evidence still rested with Dr. Heist’s May 25, 2011 second opinion report which
established that appellant was no longer disabled as a result of her accepted right ankle condition.
On March 7, 2012 appellant, through counsel, submitted a request for reconsideration.
He stated that Dr. Ahmed clearly established a causal relationship between appellant’s arthritic
condition and her work accident, which confirmed that appellant was unable to return to work in
her regular position. Appellant’s counsel alleged that there was a conflict of medical evidence
between Drs. Ahmed and Heist, which required referral to a referee physician.
In a February 23, 2012 report, Dr. Ahmed noted appellant’s November 12, 2009
employment injury when she sustained a left ankle fracture and subsequent operation. He related
that her ankle condition gradually improved but she continued to complain of pain and
discomfort in the ankle. Dr. Ahmed reported that x-rays showed gradual incidents of
osteoarthritis. He opined that the subsequent development of arthritic changes was definitely
related to the November 12, 2009 accident.
By decision dated August 2, 2012, OWCP denied modification of the January 30, 2012
hearing representative decision affirming the termination of appellant’s benefits.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.2 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.3 OWCP’s burden of proof 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 compensation.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
ANALYSIS
OWCP accepted that on November 12, 2009 appellant sustained a right ankle fracture in
the performance of duty. She stopped work and received disability compensation. OWCP
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

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

5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).

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terminated appellant’s compensation and medical benefits effective July 20, 2011 based on the
second opinion report of Dr. Heist who found that appellant did not need additional medical
treatment and was capable of returning to work with no restrictions. The Board finds that
OWCP met its burden of proof to terminate appellant’s compensation benefits as the medical
evidence establishes that appellant’s accepted right ankle condition had resolved and that she no
longer suffered residuals of her November 12, 2009 employment injury.
OWCP terminated appellant’s compensation and medical benefits based on Dr. Heist’s
June 9, 2011 second opinion report. Dr. Heist provided an accurate history of the November 12,
2009 employment injury and reviewed her history. Examination of the lower extremities
revealed well-healed previous surgical incision sites of the right ankle. Range of motion was
dorsiflexion to 20 degrees, plantarflexion to 40 degrees, left inversion to 30 degrees, right
inversion to 40 degrees, left eversion to 15 degrees and right eversion to 10 degrees. Dr. Heist
found no evidence of peripheral neuropathy or gross muscular weakness, atrophy or circulatory
difficulty. He diagnosed postoperative open reduction and internal fixation for trimalleolar
fracture of the right ankle. Dr. Heist reported that there were no objective findings on
examination to support her subjective complaints. He opined that appellant had reached
maximum medical improvement and concluded that no additional orthopedic treatment was
needed. Dr. Heist concluded that appellant was capable of returning to work with no restrictions.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the case of analysis manifested and the medical rationale expressed
in support of stated conclusions.7 Dr. Heist provided an accurate history of the November 12,
2009 employment injury and findings on examination. He explained that there were no objective
findings to support appellant’s complaints of continued right ankle pain. The Board finds that
Dr. Heist’s opinion is detailed, well rationalized and based upon a complete and accurate history.
His opinion represents the weight of the medical evidence. The Board also notes that Dr. Heist’s
opinion is supported by Dr. Desai’s July 7, 2010 diagnostic report which indicated that
appellant’s fracture appeared healed. The Board finds, therefore, that OWCP met its burden of
proof to terminate appellant’s medical and compensation benefits as the medical evidence
established that her accepted November 12, 2009 ankle condition had resolved and that she was
capable of returning to work.
Appellant also submitted various reports from Dr. Ahmed who diagnosed postclosed
bimalleolar fracture, ankle and foot pain, and ankle and foot arthritis. While Dr. Ahmed notes
appellant’s complaints of right ankle pain and limited activities, his reports fail to provide
support that appellant continued to suffer residuals of her accepted right ankle condition and
continued to be disabled from work as a result of the November 12, 2009 employment injury.8
Instead, the Board notes that Dr. Ahmed’s reports support appellant’s ability to return to work.
In a July 27, 2010 work capacity evaluation form, Dr. Ahmed noted that appellant was able to
work eight hours with restrictions. A year later, in another July 14, 2011 work capacity
evaluation form, Dr. Ahmed noted that appellant needed to use a cane and indicated that
7

K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

8

See D.R., Docket No. 12-1441 (issued February 13, 2013).

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appellant could return to work with restrictions. The Board further notes that in his February 23,
2012 report, Dr. Ahmed attributed appellant’s current right ankle conditions to osteoarthritis,
which is not an accepted condition. The Board finds, therefore, that Dr. Ahmed’s reports are
insufficient to establish that appellant’s right ankle fracture had not resolved and that she
continued to be disabled from work as a result of the November 12, 2009 employment injury.
Appellant’s counsel argues that there is a conflict of medical opinion between Dr. Ahmed
and Dr. Heist. As stated above, however, Dr. Ahmed does not provide any opinion on whether
appellant’s right ankle fracture had resolved and whether she remained disabled from work as a
result of the November 12, 2009 employment injury. Accordingly, there is no conflict in
medical evidence regarding appellant’s ability to return to work.
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 properly terminated appellant’s wage-loss compensation and
medical benefits effective July 20, 2011 on the grounds that she no longer had any residuals or
disability causally related to her accepted right ankle injury.
ORDER
IT IS HEREBY ORDERED THAT the August 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Buffalo, NY, Employer
__________________________________________

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Appearances:
David W. Covino, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2375
Issued: July 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2009 appellant, through her attorney, filed a timely appeal from a
July 23, 2009 nonmerit decision of the Office of Workers’ Compensation Programs denying her
request for reconsideration. As there was no appeal from the December 29, 2008 merit decision
within 180 days, the Board lacks jurisdiction to review the merits of the case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On November 6, 2003 appellant, then a 46-year-old practical nurse, filed a traumatic
injury claim alleging that on October 14, 2003 she was lifting a patient and injured her neck.
1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

The Office accepted a herniated disc at C4-5 and authorized an anterior cervical discectomy and
fusion at C4-5 which was performed on September 23, 2004. Appellant was paid appropriate
benefits for periods of disability. She stopped work on October 17, 2003 and returned to work at
light duty on February 28, 2005. On June 21, 2005 appellant was released to full-time
unrestricted duties.
From October 31, 2003 to March 3, 2004 appellant was treated by Dr. Naren Kansal, a
Board-certified neurosurgeon, who noted that appellant presented with right side neck pain,
difficulty lifting her arms and tingling and numbing sensation in both arms. Dr. Kansal
diagnosed large herniated disc at C4-5 with spinal cord compression and recommended an
anterior cervical discectomy. A magnetic resonance imaging scan of the cervical spine dated
October 28, 2003 revealed a large central disc herniation at C4-5. A computerized tomography
(CT) scan of the cervical spine dated December 29, 2003, revealed degenerative bony spurs at
C3-4, C4-5 and C7-T1, a small central disc protrusion with moderate stenosis at C3-4 and C4-5.
On September 23, 2004 Dr. Kansal performed an anterior cervical discectomy and fusion at C4-5
and diagnosed C4-5 herniated disc with cervical spinal stenosis. In reports dated to December 8,
2004, he advised that appellant was progressing well postoperatively and discharged her from his
care.
Appellant submitted reports dated December 7, 2004 to February 9, 2005 from
Dr. Anil K. Mathur, a Board-certified family practitioner, who advised that appellant underwent
cervical surgery on September 23, 2004 and remained totally disabled. In a February 9, 2005
duty status report, Dr. Mathur returned appellant to work light duty with restrictions.
On February 25, 2005 the employing establishment offered appellant a full-time position
as a licensed practical nurse, with a tour of duty from 12:00 a.m. to 8:00 a.m. and a salary of
$37,594.00. Appellant accepted the position and returned to work.
In prescription notes dated March 30 to May 24, 2005, Dr. Mathur advised that appellant
remained partially disabled but could continue to work full time with restrictions. On June 21,
2005 he returned appellant to work without restrictions. Appellant submitted a November 4,
2005 report from Dr. Kansal who treated her for numbness and tingling in her fingers which
began one month earlier. Dr. Kansal diagnosed possible left cervical radiculopathy and possible
left carpal tunnel syndrome and recommended nerve conduction studies.
On February 28, 2007 appellant filed a CA-2a, notice of recurrence of disability, alleging
she developed neck pain on October 5, 2005 causally related to her October 14, 2003 injury. She
stopped work on October 5, 2005.
In a decision dated May 25, 2007, the Office denied appellant’s claim for a recurrence of
disability on the grounds that the medical evidence submitted was insufficient to establish that
she sustained disability commencing October 5, 2005 causally related to her October 14, 2003
injury.
On March 25, 2008 appellant requested reconsideration. She submitted a November 10,
2005 prescription note from Dr. Mathur. In notes dated to December 8, 2005, Dr. Mathur
indicated that appellant was totally disabled due to work-related neck and arm pain. Similarly, in
notes dated February 1, 2006 to May 4, 2007, he reiterated that appellant was totally disabled.
Dr. Mathur treated appellant on March 13, 2005 and noted that on July 21, 2005 she had no neck
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pain or cervical issues. He treated her again on October 19, 2005 and noted worsening neck pain
for two weeks, tingling in her fingers and muscle spasm. Dr. Mathur indicated that appellant did
not report any of these findings during her examination on July 21, 2005 and reported no new
injuries. Based on appellant’s history of cervical disc herniation and his clinical findings before
and after October 5, 2005, she sustained a recurrence of disability on October 5, 2005 causally
related to her October 14, 2003 injury.
On September 7, 2007 appellant was treated by Dr. Valerie Vullo, a Board-certified
physiatrist, for a reinjury to her neck. She reported returning to work in March 2005 and
reinjuring herself in October 2005 when leaning over a counter. Dr. Vullo diagnosed chronic
neck pain, left cervical radiculopathy and status post cervical fusion with plates. On October 12,
2007 she noted that appellant’s symptoms were unchanged and diagnosed chronic neck pain and
left cervical radiculopathy, status post C4-5 fusion which was stable. Dr. Vullo noted that
appellant remained totally disabled.
In a June 24, 2008 decision, the Office denied modification of the May 25, 2007 decision.
On October 1, 2008 appellant requested reconsideration. In a September 17, 2008 report,
Dr. Mathur disagreed with Dr. Vullo, noting that appellant did not sustain a new injury in
October 2005. Rather, appellant had a recurrence of her original injury. Dr. Mathur stated that
he was appellant’s treating physician both before and after October 5, 2005 and she reported that
her neck pain increased when she bent over and when she lifted patients. He opined that her
cervical spine condition got worse on October 5, 2005 without any new trauma.
By decision dated December 29, 2008, the Office denied modification of the May 25,
2007 decision.
On April 23, 2009 appellant requested reconsideration. She asserted that Dr. Mathur’s
reports were well rationalized and explained why her condition recurred without a new trauma.
In a March 21, 2009 report, Dr. Mathur opined that appellant’s condition became objectively
worse with no history of new trauma. He asserted that the Office misconstrued his opinion and
that appellant’s disability was the result of her job duties. Dr. Mathur indicated that any patient
with a cervical injury which required spinal fusion was left with permanent partial disability.
By decision dated July 23, 2009, the Office denied appellant’s reconsideration request on
the grounds that her request neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,2 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,3 which provide that a claimant

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

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may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, set forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
The Office’s July 23, 2009 decision denied appellant’s reconsideration request, without
conducting a merit review, on the grounds that the evidence submitted neither raised substantive
legal questions nor included new and relevant evidence and was therefore insufficient to warrant
review of the prior decision. Appellant’s April 23, 2009 request for reconsideration neither
alleged nor demonstrated that the Office erroneously applied or interpreted a specific point of
law. Additionally, she did not advance a relevant legal argument not previously considered by
the Office.
On reconsideration, appellant contended that Dr. Mathur’s March 21, 2009 report
provided sufficient rationale to establish that her condition recurred without any specific new
trauma. However, her letter did not show how the Office erroneously applied or interpreted a
point of law nor did it advance a point of law or fact not previously considered by the Office.
Appellant did not set forth a particular point of law or fact that the Office had not considered or
establish that the Office had erroneously interpreted a point of law. Consequently, she is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).
With respect to the third requirement, Dr. Mathur’s March 21, 2009 report noted only
that appellant’s condition became objectively worse on October 5, 2005 with no history of new
trauma. He reiterated that because appellant was objectively worse after her recurrence, with no
new trauma, he believed she sustained a recurrence. The Board notes that this report, while new,
is essentially duplicative of Dr. Mathur’s prior reports of March 13 and September 17, 2008 that
were considered by the Office in its decisions of June 24 and December 29, 2008 and found

4

Id. at § 10.608(b).

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deficient.5 It is well established that evidence which repeats or duplicates that already of record
has no evidentiary value and is not sufficient to reopen a case for merit review.6
On appeal, appellant asserts that Dr. Mathur’s reports of September 17, 2008 and
March 21, 2009 were rationalized and support her claim for a recurrence of disability on
October 5, 2005. The Board only has jurisdiction to consider whether the Office properly denied
appellant’s request for reconsideration without a merit review of the claim. As noted, the Office
previously considered Dr. Mathur’s reports of September 17, 2008 and March 21, 2009. The
evidence and argument submitted on reconsideration is insufficient to warrant further merit
review of the claim.
CONCLUSION
The Board finds that Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

See Mary A. Ceglia, 55 ECAB 626 (2004).

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

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Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1312
Issued: December 17, 2008

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 March 25, 2008 appellant filed a timely appeal of a February 21, 2008 decision of the
Office of Workers’ Compensation Programs, denying his request for an oral hearing. Since more
than one year has elapsed between the last merit decisions on November 30 and December 11,
2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to 20 C.F.R. §§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing
before an Office hearing representative.
FACTUAL HISTORY
The Office accepted that appellant sustained a permanent aggravation of preexisting
degenerative arthritis of the right knee, and post-traumatic patellofemoral arthritis of the left
knee. On September 13, 1994 it issued a schedule award for a 52 percent permanent impairment

to the right leg.1 Appellant received a schedule award dated April 14, 2003 for a 15 percent left
leg permanent impairment
On June 13, 2006 the Office issued a payment of $56,826.77, which represented an
additional schedule award of a 29 percent leg impairment. It advised appellant by letter dated
June 15, 2006 that the payment had been issued prematurely and additional development of the
medical evidence was warranted. By decision dated August 14, 2006, the Office determined that
appellant was entitled to an additional one percent for the left leg and no additional impairment
for the right leg.
In a letter dated August 14, 2006, the Office advised appellant of a preliminary finding
that an overpayment of $56,826.77 was created and appellant was at fault in creating the
overpayment. Appellant was advised of a right to request a hearing before an Office hearing
representative within 30 days.
A decision dated November 30, 2006 was issued finalizing an overpayment of
$56,826.77 and denying waiver. The decision indicated that appellant had agreed to repay the
overpayment at $300.00 per month. By decision dated December 11, 2006, the Office issued a
schedule award for an additional one percent permanent impairment to the left leg.
By letter dated August 28, 2007, appellant requested that he be exempted from repaying
the overpayment due to limited income. On October 15, 2007 he submitted an overpayment
recovery questionnaire (Form OWCP-20).
By letter dated November 28, 2007, the Office advised appellant that it had reviewed the
financial information submitted and determined that a change in the repayment plan was not
warranted. It noted that appellant had not submitted a $300.00 payment since June 2007 and if
necessary the Office would pursue recovery of the debt by contacting the Office of Personnel
Management (OPM) to offset disability retirement benefits.
By letter dated December 26, 2007, appellant’s representative requested an oral hearing
of the Office “decision” dated November 28, 2007. In a decision dated February 21, 2008, the
Office’s Branch of Hearings and Review noted the preliminary overpayment determination was
dated August 14, 2006, and therefore appellant’s request for a hearing was untimely. The
Branch of Hearings and Review further stated that in its discretion it had considered the request,
and found the district Office had issued a final decision on November 30, 2006. It was also
noted that appellant could appeal the case to the Board.

1

The Board affirmed the Office’s finding of a 52 percent permanent impairment to the right leg. Docket No. 0055 (issued November 17, 2000).

2

LEGAL PRECEDENT
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provides as follows:
“Before review under [s]ection 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of issuance of the decision,
to a hearing on his claim before a representative of the Secretary….”
The Office’s regulations provide a claimant may request a prerecoupment hearing with
respect to an overpayment.2 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing.3 The only right to a review of a final overpayment
decision is to the Board.4 The hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final
overpayment decision.5
ANALYSIS
The August 14, 2006 preliminary determination of overpayment provided appellant with
a right to request a prerecoupment hearing within 30 days. As noted above, if a claimant does
not request a hearing within 30 days, it is considered a waiver of the right to a hearing. When the
final overpayment decision is issued, there is no right to a hearing and the Office does not have
discretion to grant a hearing. The only right of appeal is to the Board.
With respect to a prerecoupment hearing on the overpayment, therefore, appellant’s
December 26, 2007 request is clearly untimely. Once the Office issued its November 30, 2006
final overpayment decision, appellant’s only appeal right was to the Board. In his December 26,
2007 request for a hearing, he asserted that he was appealing a decision of the Office dated
November 28, 2007. The Office letter dated November 28, 2007 was not, however, a final
decision with appeal rights that included a right to a hearing. The letter did not provide any
information on appeal rights.6 Moreover, it addressed repayment of the overpayment that did not
involve continuing wage-loss compensation payments. Appellant was receiving disability
benefits from OPM and the Office indicated that it may have to pursue debt collection from
OPM. This issue is not under the jurisdiction of the Federal Employees’ Compensation Act.7

2

20 C.F.R. § 10.432.

3

Id.

4

20 C.F.R. § 10.440.

5

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

6

An Office final decision is accompanied by information about the claimant’s appeal rights.
§ 10.126 (1999).
7

See Robert S. Luciano, 47 ECAB 793, 799 (1996); Levon H. Knight, 40 ECAB 658 (1989).

3

20 C.F.R.

The Board therefore finds the December 26, 2007 request for an oral hearing before an
Office hearing representative was properly denied. Appellant is not entitled to a hearing with
respect to the November 30, 2006 decision and the November 28, 2007 letter from the Office
was not a final decision with appeal rights.
CONCLUSION
The Office properly denied appellant’s request for an oral hearing before an Office
hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 21, 2008 is affirmed.
Issued: December 17, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 13-1640
Issued: March 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2013 appellant, through her attorney, filed a timely appeal from a May 30,
2013 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s collapse at work and cardiac arrest on
October 16, 2010 was in the performance of duty within the meaning of FECA; and (2) whether
appellant met her burden of proof to establish that she sustained a stress-related condition
causally related to her federal employment.
On appeal, appellant’s attorney asserts that, as her job duties as a dispatcher are
inherently stressful, she has established a compensable factor of employment and therefore the
case must be remanded to OWCP to address the medical evidence of record.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 17, 2012 a traumatic injury claim was filed on appellant’s behalf. The claim
form indicated that appellant, then a 43-year-old public safety dispatcher, fell from her chair and
went into cardiac arrest on October 16, 2012. She was taken to the Womack Army Medical
Center (WAMC).2 Appellant stopped work that day.
By letter dated November 6, 2012, OWCP informed appellant of the type of evidence
needed to support her claim. In a November 21, 2012 statement, she indicated that her memory
of the events of that day were unclear. Appellant described her job duties, stating that she
received administrative and 911 calls that included giving instructions to people experiencing
medical emergencies and that the volume of calls varied from day to day.
A number of witness statements were submitted by coworkers. Curtis M. Forte indicated
that at 10:04 a.m. on October 16, 2012 he observed appellant returning to her seat when she fell,
hit her head and was unconscious and unresponsive. He related that the emergency medical
service (EMS) was called and that Christine Ansell began cardiopulmonary resuscitation (CPR)
and rescue breathing and applied a defibrillator until EMS arrived and took over. Mr. Forte
indicated that appellant was transported to WAMC. Jack C. Marshall indicated that he observed
her collapse to the ground as she was walking from the break room and described the efforts
made by personnel until EMS arrived. Pretto R. Scott indicated that he did not see appellant fall
but heard a “thump” when she fell to the floor. He stated that she appeared to be unconscious
and unresponsive. Mr. Scott indicated that he notified EMS and described the care given until
EMS arrived. Clydean S. Matthews also described the efforts to revive appellant. Ms. Ansell
stated that she heard the thump when appellant fell and described the medical efforts she and
others made until EMS arrived. Deborah Holfelder, dispatch supervisor, also heard a loud thud
and saw appellant on the floor and coworkers assisting her. She stated that she knew that
appellant was in cardiac arrest before transport to WAMC.
An OWCP Form CA-16, authorization for examination, dated October 17, 2012,
indicated that appellant was authorized to receive office and/or hospital treatment as medically
necessary for the effects of the injury.
Appellant provided the WAMC emergency room report dated October 16, 2012, in which
Dr. Rebecca A. Calhoun, Board-certified in emergency medicine, described a history that a
coworker heard a thump and found appellant unresponsive; CPR was administered; EMS was
called and appellant was transported to the WAMC emergency room. Dr. Calhoun provided
examination findings and described emergency care. She indicated that appellant was admitted
and diagnosed cardiac arrest. In a history and physical report, Dr. David C. Deblasio, a Boardcertified internist, described a history that appellant fell out of her chair with a subsequent
cardiac arrest. He noted that the family reported that, one month prior to admission at WAMC,
she had gastric bypass surgery at Cape Fear Valley Medical Center and that she had multiple
complications thereafter. Dr. Deblasio stated that, three days after appellant’s initial discharge
following the procedure, she passed out and was hospitalized for three days and that, two days
after being discharged the second time, she was readmitted for complaints of hematemesis and
2

The claim was filed on appellant’s behalf by Victoria Post, Chief, Integrated Incident Management Center.

2

was then hospitalized for seven days, received six units of blood and was found to have a gastric
ulcer. He indicated that since that time she had multiple episodes of emesis with decreased
appetite. Studies done at WAMC included an unremarkable computerized tomography (CT)
study of the brain. A CT study of the abdomen and pelvis demonstrated status post gastric
bypass and diverticulosis without evidence of diverticulitis. Electrocardiogram (EKG)
demonstrated a prolonged QT interval. In a discharge summary Dr. Hillary Thomas, Boardcertified in emergency medicine, repeated appellant’s medical history. She described appellant’s
hospital course at WAMC and indicated that discharge diagnoses were cardiac arrest, ventricular
tachycardia and ventricular fibrillation. Appellant was stabilized at WAMC and on the evening
of October 17, 2012 she was transferred to University of North Carolina Health Care (UNCHC)
in Chapel Hill, NC, for definitive evaluation of coronary anatomy and etiology of cardiac
arrhythmias.
Hospital records from UNCHC include an October 18, 2012 history and physical note in
which Dr. Timothy C. Nichols, Board-certified in internal medicine, cardiovascular disease and
interventional cardiology, described a history that appellant fell out of her chair at work and was
found to be in cardiac arrest; that coworkers administered CPR and that appellant was
transported to WAMC. Dr. Nichols also noted that she had a gastric bypass performed five
weeks previously and described the complicated postoperative period and indicated that she had
continued to struggle with abdominal pain and nausea since that time. He noted an additional
past medical history including diabetes mellitus, hypertension, hyperlipidemia and depression.
Dr. Nichols performed physical examination and diagnosed unspecified hyperlipidemia,
uncontrolled diabetes and ventricular fibrillation.
In a consultation note dated October 18, 2012, Dr. John Mounsey, a Board-certified
internist, indicated that, based on appellant’s telemetry, she had long QT syndrome that was the
underlying etiology of her recent sudden cardiac arrest.3 He advised that this could be an
acquired long QT related to her recent gastric bypass but this was not clear. Dr. Mounsey
advised that she needed an eventual implant of a dual chamber cardioverter-defibrillator (ICD)
for secondary prevention of sudden cardiac death. He indicated that appellant should be
evaluated for an underlying cardiac disorder with a magnetic resonance imaging (MRI) scan
study, coronary angiography, genetic screening and counseling.
An echocardiography study on October 18, 2012 was technically difficult and
demonstrated left ventricular abnormalities. Cardiac catheterization on October 22, 2012
demonstrated nonobstructive coronary artery disease. On October 23, 2012 an ICD was
implanted.
Appellant was discharged from UNCHC on October 25, 2012. In the discharge
summary, Dr. Nichols described her hospital course, including that an ICD was implanted. He
noted that her QT interval was significantly prolonged on EKG at admission and discharge,
which was possibly secondary to medications or a genetic syndrome and stated that genetic test
3

Long QT syndrome is defined as prolongation of the QT interval combined with torsades de pointes and
manifest as several different forms; it may be acquired, usually due to metabolic or cardiac abnormality or to drug
administration or congenital, occurring either with deafness or without. It may lead to serious arrhythmia and
sudden cardiac death. Dorland’s Illustrated Medical Dictionary, at 1823 (30th ed. 2003).

3

results were pending. Discharge diagnoses included ventricular fibrillation with arrest,
unspecified hyperlipidemia, diabetes mellitus and hypertension.
In a November 16, 2012 report, Dr. Ross Simpson, Board-certified in internal medicine,
cardiovascular disease and clinical cardiac electrophysiology, and Dr. John Rommel, a Boardcertified internist, noted that appellant was seen in follow up. Examination findings were
provided and the physicians diagnosed a long QT with cardiac arrest and hypertension. They
indicated that they were waiting for results of the genotype of appellant’s QT anomaly.
On November 23, 2012 appellant reported that she had been diagnosed with vertigo since
the October 16, 2012 incident.
In a November 29, 2012 report, Dr. Robert M. Gabel, Board-certified in occupational
medicine and a consultant at WAMC, controverted the claim. He indicated that he had reviewed
appellant’s medical records and statements from her and coworkers regarding the October 16,
2012 incident. Dr. Gabel maintained that there was no work exposure that caused or precipitated
the incident. He indicated that appellant had an acute onset of ventricular tachycardia, torsades
de pointes and/or ventricular fibrillation at work, noting that she had two significant risk factors
for this potentially fatal cardiac dysrhythmia: low serum potassium, possibly from her
medication and/or protracted vomiting over a couple of weeks and a history of a prolonged QT
interval on her EKG studies. Dr. Gabel concluded that her cardiac irregularity, fall and cardiac
arrest had no causal relationship under FECA.
By decision dated December 14, 2012, OWCP denied the claim on the grounds that fact
of injury was not established. Appellant, through her attorney, timely requested a hearing.
In a January 23, 2013 report, Dr. Gabel indicated that he had examined appellant
regarding her request to return to full duty. He indicated that she had a genetic marker for
prolonged QT and a low threshold for cardiac arrhythmias and that she had returned to modified
duty on January 11, 2013. Dr. Gabel advised that appellant could work without restrictions.
On February 15, 2013 Dr. Rommel advised that appellant had been seeking care at
UNCHC for treatment of a genetic condition prolonging part of her EKG, which placed her at
increased risk for dangerous arrhythmias. He opined that there was evidence that this condition
could be triggered by stress and being startled. Dr. Rommel noted that appellant had a
defibrillator implanted and that she was taking medication to help protect her heart.
At the hearing, held on March 13, 2013, appellant’s attorney admitted that appellant had
a genetic anomaly, long QT syndrome but, as maintained by Dr. Rommel, this could be triggered
by stress and therefore her job duties caused the cardiac arrest. Appellant testified that her job
duties as a dispatcher were stressful, noting that there were problems with a new computer
system and that there had been an increased number of suicides at Fort Bragg. She indicated that
morale was low due to staffing issues and that her QT syndrome was diagnosed after the
October 16, 2012 incident.
In a March 27, 2013 report, Dr. Rajesh K. Khurana, Board-certified in family medicine,
noted a history that on October 16, 2012 appellant collapsed to the ground in cardiac arrest while
walking from the break room at work which led to hospitalization. He indicated that she had a
4

defibrillator and had been having left shoulder pain since the injury. In correspondence dated
May 20, 2013, Edward M. Lemanski, chief of FECA division at the employing establishment,
maintained that there was no mention of appellant having left shoulder pain in any physicians’
reports until Dr. Khurana’s March 27, 2013 note.
By decision dated May 30, 2013, an OWCP hearing representative modified appellant’s
traumatic injury claim to an occupational disease claim. She found that appellant’s fall on
October 16, 2012 was not caused by a factor of employment but was the result of a
nonoccupational illness and was thus idiopathic. The hearing representative noted that appellant
was not at her workstation at the time of her collapse and concluded that, as she did not establish
a compensable factor of employment, she did not establish that she sustained a stress-related
condition in the performance of duty. She affirmed the December 14, 2012 decision.
LEGAL PRECEDENT -- ISSUE 1
It is a general rule that where an injury arises in the course of employment, occurs within
the period of employment, at a place where the employee reasonably may be and takes place
while the employee is fulfilling his or her duties or is engaged in doing something incidental
thereto, the injury is compensable unless it is established to be within an exception to the general
rule. One of the exceptions to the general rule is an idiopathic fall.4
It is a well-settled principle of workers’ compensation law that an injury resulting from
an idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse
and to suffer injury upon striking the immediate supporting surface and there is no intervention
or contribution by any hazard or special condition of employment is not within coverage of
FECA. Such an injury does not arise out of a risk connected with the employment and is
therefore not compensable. However, the fact that the cause of a particular fall cannot be
ascertained or that the reason it occurred cannot be explained, does not establish that it was due
to an idiopathic condition. If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.5 To properly apply the idiopathic fall exception to the premises rule, there
must be two elements present: a fall resulting from a personal, nonoccupational pathology and
no contribution from the employment.6 OWCP has the burden of proof to submit medical
evidence showing the existence of a personal, nonoccupational pathology if it chooses to make a
finding that a given fall is idiopathic in nature. The fact that the cause of a particular fall cannot
be determined does not establish that it was due to an idiopathic condition and if the record does
not establish a particular fall was due to an idiopathic condition, it must be considered as merely
an unexplained fall, which is covered under FECA.7
4

Roger Williams, 52 ECAB 468 (2001).

5

M.M., Docket No. 08-1510 (issued November 25, 2008).

6

N.P., Docket No. 08-1202 (issued May 8, 2009).

7

Jennifer Atkerson, 55 ECAB 317 (2004).

5

ANALYSIS -- ISSUE 1
The Board finds that appellant’s October 16, 2012 fall at work and subsequent cardiac
arrest were not in the performance of duty. Appellant’s attorney admitted at the hearing that
appellant had a genetic anomaly, long QT syndrome. This is supported by reports dated
January 25 and February 15, 2013 in which Drs. Gabel and Rommel reported that appellant had
genetic markers for prolonged QT. On October 18, 2012 Dr. Mounsey advised that, based on her
telemetry, the long QT syndrome was the underlying etiology in appellant’s recent sudden
cardiac arrest.
While Dr. Rommel stated that, sudden cardiac arrest could be triggered by stress and
being startled, his opinion was couched in equivocal terms and he did not describe appellant’s
job duties or indicate that stress caused her cardiac arrest on October 16, 2012. While the
medical opinion of a physician supporting causal relationship does not have to reduce the cause
or etiology of a disease or condition to an absolute certainty, neither can such opinion be
speculative or equivocal. The opinion of a physician supporting causal relationship must be one
of reasonable medical certainty that the condition for which compensation is claimed is causally
related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.8 Dr. Rommel’s opinion is of insufficient probative value
to establish that work-related stress on October 16, 2012 caused appellant’s collapse.
Moreover, as reported by Drs. Deblasio, Nichols and Gabel, appellant had a second
significant risk factor in that she had recently had gastric bypass surgery with a complicated
postoperative course and had recently returned to work prior to the October 16, 2012 incident.
There is no probative medical evidence in the record that she fell due to unexplained reasons or
due to a medical condition that was caused or aggravated by employment factors.9
The Board has recognized that, although a fall is idiopathic, an injury resulting from an
idiopathic fall is compensable if “some job circumstance of working condition intervenes in
contributing to the incident or injury, for example, the employee falls onto, into or from an
instrumentality of the employment” or where, instead of falling directly to the floor on which he
has been standing, the employee strikes a part of his body against a wall, a piece of equipment,
furniture or machinery or some like object.10 A claimant has the burden of establishing that he or
she struck an object connected with the employment during the course of the idiopathic
collapse.11 In the present case, the record does not support that appellant struck any object on
her way to the floor or that an employment hazard contributed in any way. While the claim form
and history provided by Dr. Deblasio indicated that she fell out of her chair during the
October 16, 2012 incident, this is not in agreement with the witness statements. Both Mr. Forte
and Mr. Marshall indicated that appellant fell to the ground while walking, returning to her seat.
8

Patricia J. Glenn, 53 ECAB 159 (2001).

9

See Y.C., Docket No. 07-513 (issued August 6, 2007).

10

Margaret Cravello, 54 ECAB 498 (2003).

11

Id.

6

There is no indication that she struck anything while falling. Appellant’s fall on October 16,
2012 is considered idiopathic and therefore noncompensable.12
The Board, however, notes that where, as in this case, an employing establishment
properly executes a Form CA-16, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim.13 The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP.14 The record is silent as to whether OWCP paid for the cost of appellant’s
examination or treatment for the period noted on the form.
LEGAL PRECEDENT -- ISSUE 2
To establish her claim that she sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has a
stress-related disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
stress-related condition.15
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,16 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.17 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.18 A claimant must support his or

12

Roger Williams, supra note 4. As to appellant’s assertion that she had vertigo since the fall, there is no medical
evidence of record that diagnosed this condition and she did not allege that she injured her right shoulder in the fall,
as identified by Dr. Khurana on March 27, 2013, more than five months after the October 16, 2012 collapse and
cardiac arrest.
13

See Tracy P. Spillane, 54 ECAB 608 (2003).

14

See 20 C.F.R. § 10.300(c).

15

Leslie C. Moore, 52 ECAB 132 (2000).

16

28 ECAB 125 (1976).

17

See Robert W. Johns, 51 ECAB 137 (1999).

18

Lillian Cutler, supra note 16.

7

her allegations with probative and reliable evidence. Personal perceptions alone are insufficient
to establish an employment-related emotional condition.19
ANALYSIS -- ISSUE 2
The Board also finds that appellant did not establish that she sustained a stress-related
condition in the performance of duty. Appellant asserted at the March 13, 2013 hearing that
there had been problems with the computer system and staffing issues. Allegations alone by a
claimant are insufficient to establish a factual basis for a stress-related claim but rather must be
corroborated by the evidence.20 Appellant submitted no witness statements or other
corroboration of these specific allegations.
Appellant also asserted at the hearing and on appeal that her regular duties as a
dispatcher, which are inherently stressful, caused stress. As a dispatcher, her job duties include
interacting with the public in emergency and stressful situations. Under the principles set forth
in Cutler, described above, this would be a compensable factor of employment.21 There is,
however, no medical evidence to support that this compensable employment factor caused any
medical condition.
To be of probative medical value, a physician’s opinion regarding the cause of an
emotional condition must relate the condition to the specific incidents or conditions of
employment accepted as factors of employment, must be based on a complete and accurate
factual history and must contain adequate medical rationale in support of the conclusions.22 The
only medical report of record that discussed the relationship of stress was Dr. Rommel’s
February 15, 2013 report. As discussed above, this report is equivocal and of insufficient
probative value to establish that appellant sustained a stress-related condition caused by her job.
Dr. Rommel did not discuss any specific job duties or relate his supposition to anything specific.
There is no additional medical evidence of record that discusses appellant’s job duties.
The Board therefore concludes that, contrary to appellant’s assertion on appeal, she has
not provided any probative medical evidence to show that her regular job duties caused stress
such that further development of the medical record is warranted.
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.

19

Roger Williams, supra note 4.

20

M.D., 59 ECAB 211 (2007).

21

See Peter J. Smith, 48 ECAB 453 (1997); Lillian Cutler, supra note 16.

22

Mary J. Ruddy, 49 ECAB 545 (1998).

8

CONCLUSION
The Board finds that appellant did not sustain an injury in the performance of duty on
October 16, 2012 and that she did not establish that she sustained a stress-related condition due
to the accepted employment factor.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 21, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Knox, KY, Employer
__________________________________________

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

Docket No. 17-1547
Issued: November 2, 2018

Case Submitted on the Record

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

JURISDICTION
On July 7, 2017 appellant, through counsel, filed a timely appeal from a June 14, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence to OWCP after the June 14, 2017 decision was issued. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish right shoulder
conditions causally related to the accepted December 9, 2015 employment incident.
FACTUAL HISTORY
On December 21, 2015 appellant, then a 58-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right shoulder while in the performance of duty
on December 9, 2015. She attributed her right shoulder pain to “repetitive motion.” In a separate
December 19, 2015 narrative statement, appellant indicated that, on December 9, 2015, when she
extended her right arm to put two letters inside a mailbox, she felt pain in her upper arm as if she
had been stung by a wasp or given a needle injection. She continued to work following the claimed
December 9, 2015 employment incident.
In a December 16, 2015 report, Dr. Nison I. Abayev, a Board-certified family practitioner,
noted complaints of right shoulder pain since a December 9, 2015 work-related injury. He noted
that appellant had been doing repetitive motions for a long time and when she tried to lift her arm
to put mail into the mailbox, she suddenly felt severe pain in her right shoulder. Since then,
appellant had been having a difficult time utilizing her right shoulder. Her pain was mostly over
the supraspinatus muscle. Dr. Abayev diagnosed right rotator cuff tendinitis and referred appellant
for a right upper extremity magnetic resonance imaging (MRI) scan.
In a December 23, 2015 note, Dr. Abayev advised that appellant had been seen for an
appointment that day and she should be excused from work for the period December 23, 2015
through January 3, 2016. He further advised that she could return to work on January 4, 2016.
In a December 29, 2015 claim development letter, OWCP sought clarification of the type
of injury appellant was claiming. It explained the difference between a traumatic injury claim and
an occupational disease claim and asked her to specify which she was claiming. OWCP also
advised appellant of the need for additional medical evidence to support her claim for
compensation benefits. It afforded her 30 days to submit the requested information.
In response to OWCP’s factual questionnaire, appellant clarified that she was claiming a
traumatic injury, which occurred at approximately 1:00 p.m. on Wednesday, December 9, 2015.
She reiterated that as she extended her right arm to place two letters in a customer’s mailbox, she
felt like a wasp had stung her or as if she had received a shot in her upper arm. Appellant stated
that she reported the incident when she returned to the employing establishment later that same
day. She also indicated that she had no prior problems with her right shoulder or arm.
On December 23, 2015 Dr. Abayev diagnosed right rotator cuff syndrome and advised that
appellant should have the rest of the year off.
In a December 23, 2015 duty status report (Form CA-17), Dr. Abayev advised that
appellant needed to be taken off work until a right shoulder MRI scan was obtained.
In a January 5, 2016 report, Dr. Abayev continued to diagnose right rotator cuff syndrome
and tendinitis. He advised that appellant was totally disabled from work for the period January 4
2

to 11, 2016, due to rotator cuff tendinitis and her return date was pending MRI scan results and
referral to a surgeon.
In a January 5, 2016 duty status report (Form CA-17), Dr. Abayev reiterated that appellant
needed a right shoulder MRI scan and was totally disabled for work until it was performed.
On January 14, 2016 the employing establishment issued an authorization for examination
and/or treatment (Form CA-16), in which appellant was authorized to visit Dr. Abayev.
A January 19, 2016 right shoulder x-ray was negative as there was no acute fracture, no
dislocation, and no significant degenerative change.
In a January 19, 2016 report, Dr. Abayev indicated that appellant continued to have
difficulties using her right arm and asserted that since her x-rays were normal, an MRI scan would
be scheduled to see if she had findings that could be treated conservatively either with injections
and physical therapy or, if the injury were more complex, be referred to an orthopedic surgeon.
By decision dated February 2, 2016, OWCP accepted that the December 9, 2015
employment incident occurred as alleged and that a medical condition had been diagnosed.
However, it denied appellant’s traumatic injury claim because the medical evidence of record was
insufficient to establish causal relationship. OWCP informed appellant that her treating physician
had not explained how lifting her arm to place mail in a mailbox would have caused or aggravated
her medical condition.
On March 2, 2016 appellant requested an oral hearing by a representative of OWCP’s
Branch of Hearings and Review.
A January 25, 2016 right shoulder MRI scan demonstrated a small, approximately 4x5
millimeter, full-thickness tear involving the anterior distal insertion of the supraspinatus tendon,
mild acromioclavicular (AC) joint arthropathy, mild subacromial-subdeltoid bursal inflammation,
and mild biceps tendinopathy.
On January 25, 2016 Dr. Abayev diagnosed right shoulder rotator cuff tear, other specific
arthropathies of the right shoulder, right shoulder bursitis, and right shoulder bicipital tendinitis.
In a February 10, 2016 report, Dr. Abayev opined that appellant’s lifting of her arm to
insert mail into a mailbox and constant repetitive motions caused sequential injury to the
supraspinatus tendon to the point that small partial ruptures continued to progress to the point of
complete rupture. He further opined that this caused a sudden onset of worsening of the pain with
loss of range of motion and traumatic pain.4
A telephonic hearing was held before an OWCP hearing representative on October 4, 2016.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence. OWCP did not receive any additional evidence.

4

Appellant retired from federal employment effective June 30, 2016.

3

By decision dated November 30, 2016, OWCP’s hearing representative affirmed the prior
decision.
On May 23, 2017 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In an October 6, 2016 report, Dr. Abayev noted that when he first examined appellant he
felt she had rotator cuff tendinitis, but when she returned to him on December 23, 2015, her right
shoulder MRI scan showed a supraspinatus tendon tear, so he took her off work. He referred
appellant to an orthopedic surgeon who performed surgery on March 24, 2016. Dr. Abayev noted
that, since her injury, appellant was having panic attacks and trouble sleeping.
On October 7, 2016 Dr. Kevin Harreld, an orthopedic surgeon, indicated that appellant was
under his care regarding her previous right rotator cuff repair. He indicated that appellant’s federal
duties included casing mail, which required lifting her arm above shoulder level or to an overhead
position, repeatedly pulling down mail, lifting and handling parcels, and extending her arm to open
and close mailboxes. Dr. Harreld opined that appellant’s federal duties “would contribute to her
shoulder condition in a medically probable manner.”
By decision dated June 14, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.6
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8 An employee may establish that an injury occurred in the performance of duty, as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.9

5

Supra note 2.

6

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

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) 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 factor(s).12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her right
shoulder conditions are causally related to the accepted December 9, 2015 employment incident.
The January 25, 2016 MRI scan demonstrated a small full-thickness tear involving the anterior
distal insertion of the supraspinatus tendon, mild AC joint arthropathy, mild subacromialsubdeltoid bursal inflammation, and mild biceps tendinopathy. The MRI scan report, however,
fails to address the etiology of appellant’s right shoulder conditions. Diagnostic studies are of
limited probative value as they do not address whether the employment incident caused any of the
diagnosed conditions.13
In an October 7, 2016 report, Dr. Harreld opined that appellant’s federal duties “would
contribute to her shoulder condition in a medically probable manner.” The Board finds that
Dr. Harreld’s opinion regarding the cause of appellant’s right shoulder condition is speculative
and equivocal in nature.14 Dr. Harreld did not otherwise sufficiently explain the reasons why
diagnostic testing and examination findings led him to conclude that the December 9, 2015
incident at work caused or contributed to a diagnosed condition. For these reasons, the abovenoted evidence is insufficient to satisfy appellant’s burden of proof with respect to causal
relationship.15
In his reports, Dr. Abayev diagnosed right shoulder rotator cuff syndrome, rotator cuff tear,
other specific arthropathies, bursitis, and bicipital tendinitis. He noted that appellant had been
performing repetitive motions with the right arm for a considerable period of time and when she
tried to lift her arm to put mail into a mailbox, she suddenly felt severe pain in her right upper
shoulder. Dr. Abayev opined that appellant’s lifting of her arm to insert mail into a mailbox and
constant repetitive motions caused sequential injury to the supraspinatus tendon to the point that
small partial ruptures continued to progress to complete rupture. He further opined that this caused
a sudden onset of worsening pain with loss of range of motion and traumatic pain. The Board
10

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

11

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

12

Id.

13

See J.S., Docket No. 17-1039 (issued October 6, 2017).

14

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
15

See supra notes 5-8.

5

finds that Dr. Abayev failed to provide sufficient medical rationale explaining how extending her
right arm at work on December 9, 2015, either caused or contributed to appellant’s conditions.
Dr. Abayev opined that appellant’s right shoulder conditions were causally related to the
December 9, 2015 extending incident at work. However, the fact that a condition manifests itself
during a period of employment is not sufficient to establish causal relationship.16 Temporal
relationship alone will not suffice.17 A physician’s opinion must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed conditions and
appellant’s specific employment incident.18 Dr. Abayev’s reports did not include sufficient
medical rationale explaining how the December 9, 2015 extending incident either caused or
contributed to appellant’s conditions. For these reasons, the Board finds that the evidence from
Dr. Abayev is insufficient to establish that appellant’s diagnosed right shoulder conditions are
causally related to the accepted December 9, 2015 work incident.
As appellant has not submitted any rationalized medical evidence to support her claim that
she sustained a right shoulder injury causally related to the accepted December 9, 2015
employment incident, she has failed to meet her burden of proof to establish entitlement to
compensation benefits.19
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 right shoulder
conditions causally related to the accepted December 9, 2015 employment incident.

16

20 C.F.R. § 10.115(e).

17

See D.I., 59 ECAB 158, 162 (2007).

18

Supra note 11.

19

The Board notes that the employing establishment issued appellant a Form CA-16 on January 14, 2016,
authorizing medical treatment. The Board has held that where an employing establishment properly executes a Form
CA-16, which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it
creates a contractual obligation, which does not involve the employee directly, to pay the cost of the examination or
treatment regardless of the action taken on the claim. Although OWCP denied appellant’s claim for an injury, it did
not address whether she is entitled to reimbursement of medical expenses pursuant to the Form CA-16. See 20 C.F.R.
§§ 10.300, 10.304; D.M., Docket No. 13-535 (issued June 6, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 2, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
HUMAN RESOURCE OFFICE, NAVAL POST
)
GRADUATE SCHOOL, Monterey, CA,
)
Employer
)
___________________________________________ )
R.P., Appellant

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

Docket No. 08-561
Issued: September 23, 2008

Case Submitted on the Record

DECISION AND ORDER

Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 11, 2006, which affirmed the denial of
his claim for a recurrence of disability. Pursuant to 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 a recurrence of disability on February 17, 2001
causally related to his June 1, 1992 employment injury.
FACTUAL HISTORY
This case has twice been on appeal before the Board.1 In decisions dated August 30,
2004 and November 23, 2005, the Board found that appellant failed to provide sufficient medical
1

Docket No. 05-1584 ( issued November 23, 2005) and Docket No. 04-844 ( issued August 30, 2004).

evidence to establish a change in the nature and extent of his injury-related condition or a change
in the nature and extent of his light-duty job requirements such that he was unable to perform his
light-duty position. The Board found that he failed to meet his burden of proof to establish that
the recurrence of disability on February 17, 2001 was causally related to his accepted
employment injury on June 1, 1992. The facts and the history contained in the prior appeals are
incorporated by reference.
By letter dated September 21, 2006, appellant requested reconsideration. He submitted
new medical evidence and made several arguments. Appellant inquired as to why his chronic
pain, chronic depression and leg impairments were not accepted by the Office. He contended
that his condition had worsened such that he was unable to sit, bend, stand or walk and that it
originated from his accepted injury as opposed to his preexisting conditions. Appellant also
indicated that his light-duty position was for four hours per day, not six or eight hours. He
requested that he be sent to a physician for a determination as to whether he reached maximum
medical improvement. Appellant noted that his recurrence for an injury on June 5, 1997 was
accepted under claim number’s 13-1112172 and 13-1133067. He said that his employer
withdrew the job offer of four hours a day on April 20, 1995 and did not adhere to his work
restrictions. Appellant alleged that, when his work hours increased, his job description changed.
He also alleged that there were differences in opinion between his physicians, questioned their
specialties and suggested there was a conflict. Appellant asserted that his disability was not just
a medical determination and that his age, education, work history, skills, abilities and pain should
be considered. He also alleged that his back injury had seriously impacted his interactions with
friends and family and that he had suffered hardships and had to take pain medications, which
included narcotics and opiates which precluded him from driving. Appellant also noted that he
lived in a rural area that was not accessible to mass transit.
A January 20, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine, read by
Dr. Randall G. Weissbuch, a Board-certified radiologist, revealed degenerative disc disease with
minor nerve root impingements. A July 11, 2006 lumbar myelogram read by Dr. Andrew
Schmidt, a Board-certified diagnostic radiologist, found no evidence of spinal stenosis or nerve
root impingement.
In a report dated April 19, 2006, Dr. Christopher Carver, a Board-certified neurosurgeon,
noted that appellant was seen for complaint of low back and bilateral lower extremity
discomfort. He indicated that appellant had subjective pain in the low back, both legs, difficulty
sitting any length of time, difficulty with walking, with weakness and numbness and tingling in
both lower extremities. Dr. Carver noted that appellant’s January 20, 2006 MRI scan revealed
very mild discogenic disease at L4-5 and L5-S1. He diagnosed low back and extremity
discomfort and chronic pain.
A June 29, 2006 nerve conduction study and electromyogram study read by Dr. Gerald F.
Wahl, a Board-certified neurologist, was normal. On August 9, 2006 Dr. Carver noted that
appellant’s diagnostic test results were normal. He could not identify any neurosurgically
amenable lesion and did not have a good explanation for appellant’s ongoing chronic pain.
Dr. Carver indicated that appellant remained symptomatic and advised that he should utilize
chronic pain management. In a report dated September 20, 2006, he indicated that appellant

2

“returns for some reasons, which are not entirely clear.” Dr. Carver advised he would see
appellant on an as needed basis.
On October 2, 2006, Dr. Bradley W. Carpentier, a Board-certified anesthesiologist, noted
appellant’s history of injury and treatment. He conducted a physical examination and diagnosed
lumbar spondylosis, axial low back pain and radiating lower extremity pain, with radiculopathy
versus radiating facet pain. Dr. Carpentier recommended additional treatment which included
diagnostic medial branch blocks from L3-4 to the sacrum at the levels of the visible facet
hypertrophy, transforaminal epidural steroid injections and spinal cord stimulation. In a
November 3, 2006 report, he repeated his previous diagnoses and recommended additional
treatment.
By decision dated December 11, 2006, the Office affirmed the denial of appellant’s
recurrence claim.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.2
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.3 This consists of 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.4 The physician’s
opinion 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.5
A recurrence of disability also includes an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn, (except when such withdrawal occurs for
reasons of misconduct, nonperformance of work duties or a reduction-in-force (RIF) or when the

2

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986). See 20 C.F.R.
§ 10.5(x), (y) (defines the terms “recurrence of disability” and “recurrence of medical condition”).
3

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

4

Duane B. Harris, 49 ECAB 170, 173 (1997).

5

Gary L. Fowler, 45 ECAB 365, 371 (1994).

3

physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.6
ANALYSIS
The Office accepted that appellant sustained a lumbar strain, lumbar disc displacement
and anxiety in the performance of duty on June 1, 1992. It later accepted aggravation of a
herniated lumbosacral disc. Appellant then returned to work full time in a modified capacity on
November 1, 1998. He worked full duty within his restrictions until February 17, 2001, when his
position was eliminated due to a RIF. The Board previously determined that total disability due
to a RIF by the employing establishment, which affects both full-duty and light-duty employees,
does not constitute a compensable recurrence of disability.7
In the present appeal, appellant alleges a change in the nature and extent of his light-duty
requirements. He contends that his previous light-duty position was actually supposed to be for
four hours per day, not six or eight hours. Appellant also alleged that his employer did not
adhere to his job restrictions and, when his work hours increased, his job description changed.
The Board finds that this argument is unconvincing. The record reflects that appellant worked in
a modified capacity full time from November 1, 1998 until his position was eliminated due to
RIF on February 17, 2001. Appellant filed a claim for a recurrence of disability after his position
was eliminated. The Board notes that his arguments regarding his job being changed were not
made at that time. However, appellant has not presented any evidence to support his allegations.
He made general allegations without any specific details as to time or place, other than to note a
change in April 1995. Without any supporting evidence to substantiate his claim, appellant has
not shown a change in the nature and extent of the light-duty job requirements.
Appellant also argues that his accepted conditions have worsened such that he is now
unable to sit, bend stand or walk and that the worsening arose from his accepted conditions as
opposed to his preexisting conditions. The Board notes that this is a medical issue. The
evidence submitted by appellant does not establish that he sustained a recurrence of disability
beginning February 17, 2001 causally related to the accepted employment injuries. Appellant
has not submitted sufficient medical evidence showing that he sustained a recurrence of
disability beginning February 17, 2001 due to his accepted employment injury.8

6

20 C.F.R. § 10.5 (x).

7

Docket No. 04-844, supra note 1. See id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.3(b)(2) and 2.1500.7(a)(4) (May 1997); Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814-12 (July 1997).
8

Appellant also asserts that medical evidence should not be the only consideration in determining if his disability
was caused by his work injury. However, the Board has held that whether a particular injury causes an employee to
be disabled for work and the duration of that disability, are medical issues that must be proved by a preponderance
of the reliable, probative and substantial medical evidence. Tammy L. Medley, 55 ECAB 182, 184 (2003). The
Board has also held that an award of compensation may not be based on a claimant’s belief of causal relationship.
Paul Foster, 56 ECAB 208, 211 (2004).

4

Appellant submitted several reports from Dr. Carver. However, these reports did not
offer any opinion regarding whether he had any disability beginning February 17, 2001 causally
related to his accepted conditions.9 Instead, Dr. Carver addressed appellant’s current status and
reported conditions that have not been accepted by the Office as employment related such as
mild discogenic disease at L4-5 and L5-S1 noted in his April 19, 2006 report. In an August 9,
2006 report, Dr. Carver indicated that appellant’s diagnostic test results were normal and opined
that he did not have a good explanation for appellant’s complaint of chronic pain.
Appellant also submitted October 2 and November 3, 2006 reports from Dr. Carpentier.
However, Dr. Carpentier did not offer any opinion that appellant sustained a recurrence of
disability on or after February 17, 2001 due to his accepted conditions and he also diagnosed
conditions that were not accepted by the Office as being employment related.
Appellant also submitted several progress notes and numerous diagnostic reports.
However, these reports are insufficient because none of these physicians provided an opinion
addressing how appellant’s accepted conditions had changed such that disability resulted
beginning February 17, 2001. Therefore, their reports do not establish causal relationship.
Appellant has not submitted evidence establishing either a change in the nature and
extent of his injury-related condition or a change in the nature and extent of his light-duty
requirements. Consequently, he has not met his burden of proof in establishing a recurrence of
disability beginning February 17, 2001.10
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on February 17, 2001 causally related to the June 1, 1992 employment injury.

9

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

The Board notes appellant presented arguments regarding expansion of his claim. However, the Office has not
rendered a decision regarding expanding his claim and thus that issue is not presently before the Board. See
20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6