United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 08-490
Issued: August 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 30, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated November 20, 2007.
Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award decision.
ISSUE
The issue is whether appellant is entitled to an additional schedule award for his right and
left lower extremities.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 39-year-old special agent, filed
a Form CA-2 claim for benefits based on occupational disease on September 21, 1979, alleging
that he developed a neurological condition as a result of his exposure to hazardous levels of lead
when using an indoor firing range at work from 1972 to 1978. By decision dated October 4,
1982, the Office denied the claim. By decision dated July 14, 1983, an Office hearing

representative affirmed the October 4, 1982 decision. In a February 9, 1984 decision,1 the Board
reversed the Office’s October 4, 1982 and July 14, 1983 decisions and found that appellant’s
claimed neurological condition was causally related to employment factors.
The Office accepted claims for polyneuropathy, polyneuritis of the lower extremity
secondary to toxic lead poisoning, bilateral thrombophlebitis and pulmonary emboli as a
complication of the phlebitis. Appellant received schedule awards for a 32 percent impairment
of the right lower extremity and a 32 percent impairment of the left lower extremity in 1984; a 35
percent impairment of the right lower extremity and a 35 percent impairment of the left lower
extremity as of 1988; a 22 percent impairment of the right lower extremity and a 22 percent
impairment of the left lower extremity as of 1992; a 15 percent impairment of the right lower
extremity and a 15 percent impairment of the left lower extremity as of 1999; and a 3 percent
impairment of the right lower extremity and a 3 percent impairment of the left lower extremity as
of 2001.
In a decision dated June 17, 2005, the Office awarded appellant an additional award for
the right and left lower extremities for the period January 2, 2005 to October 9, 2006, for a total
of 92.16 weeks. Appellant, therefore, received schedule awards for a total 88 percent
impairment of the left and right lower extremities.
In a March 15, 2006 report, Dr. David A. Davis, Board-certified in psychiatry and
neurology and appellant’s treating physician, stated:
“[Appellant] had been seen on March 8, 2006, because of a progressive decline in
your function. The legs feel heavier. You have difficulty with ambulation. You
have the numbness in your feet. Today, we undertook nerve conduction studies
which do show a decline in the velocity of your left peroneal nerve ... a [seven]
percent reduction in velocity. The decline is likely manifest throughout your
nervous system. Areas such as the spinal cord or genitalia are not easily assessed.
My recommendation is that you be given an additional [seven] percent
impairment of the whole person.”
In a September 14, 2006 report, Dr. Michael W. Morse, Board-certified in psychiatry and
neurology, stated:
“[Appellant] has a lead toxicity polyneuropathy. I have been asked to reevaluate
the impairment of his legs only.
“In his legs, [appellant] has essentially no feeling. In his feet, he has no
movement of his toes. [Appellant] has absent ankle jerks. He has to walk with a
cane. The pain is excruciating and significantly limits [appellant’s] activity.
“Based upon the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (fifth edition) [A.M.A., Guides], page 348, Table 13-24,
classification procedure for determining nervous system impairment due to loss of
1

Docket No. 83-1844 (issued February 9, 1984).

2

muscle power and motor function resulting from peripheral nerve disorder,
[appellant] would be rated as 100 percent impaired in his peroneal and tibial
nerves distally.
“Based upon Table 17-37, impairments due to nerve deficits, [appellant] is given
42 percent lower extremity [impairment] based upon the common peroneal, and 5
percent for the medial plantar and 5 percent for the lateral plantar nerves.
“Based upon the sensory table, [appellant] is given a five percent for the common
peroneal, five percent for the superficial peroneal, two percent for sural, five
percent for the medial plantar, and five percent for the lateral plantar.
“For dysesthesias, [appellant] is given five percent for the common peroneal,
superficial peroneal, sural, medial plantar and lateral plantar. This gives him a
whole body total rating of 52 percent for motor, 27 percent for sensory, 30 percent
for dysesthesias. Using the [C]ombined [V]alues [C]hart on page 604, 52 plus 30
equals 66 percent, and 66 plus 27 equals 75 percent. This is for one extremity.”
In an impairment evaluation dated November 20, 2006, the Office medical adviser
determined that appellant was not entitled to an additional schedule award for the left and right
lower extremities greater than the 88 percent already awarded. He calculated, based on
Dr. Morse’s findings, that appellant actually had a 68 percent impairment of each extremity
when calculated pursuant to the Combined Values Chart at page 604 of the A.M.A., Guides. The
Office medical adviser took Dr. Morse’s findings of impairment based on dysesthesia -- 5
percent for the common peroneal, superficial peroneal, sural, medial plantar and lateral plantar
under Table 16-10 at page 482 of the A.M.A., Guides -- and found that this combined for a 23
percent total lower extremity impairment under the Combined Values Chart for dysesthesias.
For appellant’s sensory impairment, the Office medical adviser relied on Dr. Morse’s findings of
5 percent for the common peroneal, 5 percent for the superficial peroneal, 2 percent for sural, 5
percent for the medial plantar, and 5 percent for the lateral plantar under Table 16-11, page 482
of the A.M.A., Guides -- for a total 20 percent total sensory impairment for the right and left
extremities. He combined the 23 and 20 percent impairments at page 604 and calculated a 38
percent impairment in each extremity.
The Office medical adviser then calculated a 48 percent lower extremity impairment for
the right and left lower extremities by taking Dr. Morse’s findings of a 5 percent impairment for
the medial plantar, a 5 percent impairment for the lateral plantar nerves and a 42 percent
impairment for the common peroneal Table 16-11, page 482 of the A.M.A., Guides and
combining them at page 604. He found a total 68 percent lower extremity impairment for the
right and left lower extremities by combining appellant’s 48 percent and 38 percent impairments
at page 604.
On June 27, 2007 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right and left upper extremity.

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In an August 27, 2007 report, Dr. Morse stated findings on examination, reiterated his
previous findings and conclusions, and stated:
“[Appellant] has had multiple impairment ratings. They have gradually gotten
worse because of his worsening neuropathy as documented by continued
worsening of his nerve conduction velocity test as well as his clinical picture.
“I have given [appellant] an impairment rating in the past and explained my
rationale. There was a disagreement about this and he was referred to [the Office
medical adviser, who] gave an impairment rating and rationale. My last
impairment rating was 95 percent. Please refer to my note dated September 14,
2006 for the rationale behind this. The patient has gotten worse since then and I
would consider him 100 percent disabled at this time.”
In an October 25, 2007 impairment evaluation, an Office medical adviser found that
Dr. Morse had indicated that appellant had a 95 percent impairment in his September 14, 2006
report and that he considered him 100 percent disabled. However, he noted that Dr. Morse had
actually found a 75 percent impairment in each lower extremity in his September 14, 2006
report, a finding which was not properly calculated because Dr. Morse had added rather than
combined his findings for dysesthesias, sensory and motor nerve impairment. The Office
medical adviser noted that he had found a 68 percent impairment for each lower extremity by
taking Dr. Morse’s findings and combining them pursuant to the Combined Values Chart at
page 604. He further found that Dr. Morse had incorrectly referred to lower extremity figures as
whole person figures. The Office medical adviser stated that appellant’s condition was
worsening, but opined that Dr. Morse’s evaluation lacked sufficient detail for him to determine a
schedule award for the lower extremities.
By decision dated November 30, 2007, the Office found that appellant was not entitled to
additional compensation for his schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.3 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

5 U.S.C. § 8107(c)(19).

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losses.4 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.5
ANALYSIS
The Board finds there are insufficient grounds for an additional award based on
appellant’s right and left lower extremity impairments. Appellant requested greater impairment
than the 88 percent previously awarded by the Office, and the Office medical adviser concluded
in his October 25, 2007 report that appellant’s condition was indeed worsening. He noted that
Dr. Morse indicated in his August 27, 2007 report that appellant had a 95 percent impairment of
the left and right lower extremity and that he considered him 100 percent disabled; however, he
noted that Dr. Morse, in his actual computations reflected in his September 14, 2006 report,
found that appellant only had a 75 percent impairment of the lower extremities. The Office
medical adviser further found that the 75 percent figure was not accurate. Dr. Morse had added
his findings to arrive at a total 75 percent impairment, rather than combining them, in accordance
with the Combined Values Chart at page 604. The Office medical adviser determined that
Dr. Morse’s findings and calculations produced a 68 percent impairment of the lower extremities
when calculated pursuant to the Combined Values Chart at page 604. He found a total 23
percent impairment of the lower extremities for dysesthesia based on Dr. Morse’s findings for
common peroneal, superficial peroneal, sural, medial plantar and lateral plantar under Table 1610 at page 482 of the A.M.A., Guides; and a total 20 percent total sensory impairment for the
right and left extremities based on Dr. Morse’s findings of 5 percent for the common peroneal, 5
percent for the superficial peroneal, 2 percent for sural, 5 percent for the medial plantar, and 5
percent for the lateral plantar under Table 16-11, page 482 of the A.M.A., Guides; which he
combined for a 38 percent impairment in each extremity under the Combined Values Chart at
page 604 of the A.M.A., Guides; a 48 percent impairment of the lower extremities based on
Dr. Morse’s findings of a 5 percent impairment for the medial plantar nerve, a 5 percent
impairment for the lateral plantar nerves and a 42 percent impairment for the common peroneal
under Table 16-11, page 482 of the A.M.A., Guides. Relying again on the Combined Values
Chart at page 604, the Office medical adviser combined appellant’s 48 percent and 38 percent
lower extremity impairments for a total 68 percent lower extremity impairment.
The Board affirms the finding of a 68 percent impairment for the left and right lower
extremities, as the Office medical adviser’s calculations based on Dr. Morse’s findings were
proper and in accordance with the applicable protocols of the A.M.A., Guides. The record also
contains the March 15, 2006 report from Dr. Davis which recommended an additional seven
percent impairment for the whole person. However, this rating is not probative, as the Act does
not provide for permanent impairment of the whole person.6 As the amount already paid for the
prior schedule awards exceeded the amount appellant would be entitled to a schedule award for a
68 permanent impairment for the right and left lower extremities, the Office properly found that
appellant was not entitled to additional compensation for a schedule award of compensation.
4

20 C.F.R. § 10.404.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

6

See, e.g., Timothy J. McGuire, 34 ECAB 189 (1982).

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Accordingly, as there is no other probative medical evidence establishing that appellant
sustained any additional permanent impairment, the Board will affirm the Office’s November 20,
2007 decision.7
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award for his right
and left lower extremities.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 14-1568
Issued: November 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 7, 2014 appellant, through her attorney, filed a timely appeal from a June 19,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. As the last merit decision was issued in this case on May 31, 2013,
more than 180 days prior to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s May 29, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney contends that the decision was contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 7, 2013 appellant, then a 53-year-old city carrier, submitted two traumatic
injury claims pertaining to the same alleged injury of December 6, 2010.2 In the first claim, she
stated that on the morning of December 6, 2010 she sustained abrasions and scratches on her
knees when she fell after turning to enter a yard on Mann Street. The employing establishment
contended that the alleged injury did not occur in the performance of duty because appellant did
not report the injury until months after the incident occurred. In the second claim form, appellant
explained that on December 6, 2010 she sustained injuries to her hands and knees when she
tripped on a water hose in a yard on Moore Street and fell down. She documented what
happened and informed Postmaster Paul Frazier, but she was never told to file a claim or
otherwise report the alleged injury.
In a March 14, 2013 letter, the employing establishment controverted appellant’s claim
contending it lacked reliable, probative or substantial value that an injury occurred in the
performance of duty. It stated that she did not provide any documentation to substantiate that the
accidents or injuries ever occurred. The employing establishment noted that it received three
different traumatic injury claims from appellant describing different injuries of June 22, 2009
and December 6, 2010.
In a statement, Mr. Frazier, appellant’s postmaster, advised that on November 5, 2010
appellant only had 11 minutes on her route when she clocked out, stating she had foot problems.
In an October 25, 2010 hospital discharge instruction, Dr. Robert Breving, a Boardcertified surgeon, reported that appellant was diagnosed and treated in emergency medical care.
The instructions included fact sheets on plantar fasciitis and celecoxib, an anti-inflammatory
medication.
By letter dated April 23, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested additional evidence to establish that the
December 6, 2010 incident occurred at the time, place and in the manner alleged and that she
sustained a diagnosed condition as a result of the alleged incident. Appellant did not respond.
In a decision dated May 31, 2013, OWCP denied appellant’s claim. It found that the
factual evidence was insufficient to establish that the December 6, 2010 slip and falls occurred at
the time, place or in the manner alleged.
In a letter received by OWCP on May 29, 2014, appellant’s counsel requested
reconsideration.
In a May 22, 2013 report, Dr. Joseph M. LaCava, a podiatrist, related appellant’s
complaints of painful bilateral heel pain. He noted that she worked as a postal carrier.
Dr. LaCava reviewed appellant’s history and conducted an examination. He reported that plantar
fascia of both feet exhibited mild, moderate pain to palpation. Dr. LaCava also observed
2

Appellant had also filed a previous traumatic injury claim for a June 22, 2009 employment incident (File No.
xxxxxx289).

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excessive pronation of both feet and deformity of the ankle dorsiflexion. He diagnosed bilateral
plantar fasciitis, heel pain syndrome and calcaneal exostosis.
In a May 22, 2014 report, Dr. Michael Shane Higginbotham, a Board-certified family
practitioner, stated that appellant was a patient at his clinic. He reported that she suffered from
neuropathy and plantar fasciitis, which could be made worse by excessive walking or standing
on her feet.
By decision dated June 19, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review under
5 U.S.C. § 8128(a). It determined that the evidence submitted was irrelevant and immaterial to
the issue in the case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district office.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must also be submitted within one year of the date of
OWCP decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.8

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
5

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at § 10.607(a).

7

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

8

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

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ANALYSIS
Following the May 31, 2013 decision denying her claim, appellant submitted a request
for reconsideration that was received by OWCP on May 29, 2014. The denial decision
determined that she submitted insufficient factual evidence to establish that the December 6,
2010 incidents occurred at the time, place or in the manner alleged. OWCP noted that appellant
failed to explain why she waited over two years to file a claim and why she did not seek
immediate medical attention after the alleged falls at work.
With her reconsideration request, appellant submitted medical reports from Drs. LaCava
and Higginbotham regarding treatment for her bilateral heel pain, plantar fasciitis and
neuropathy. These reports, however, are not new or relevant evidence to the underlying factual
issue regarding whether the December 6, 2010 employment incidents occurred as appellant
alleged. The Board notes that the submission of evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.9 Accordingly, these medical
reports are insufficient to warrant further merit review under 5 U.S.C. § 8128(a).
On appeal appellant’s counsel contends generally that OWCP decision was contrary to
law and fact. The Board notes that appellant has not provided any evidence to establish that
OWCP improperly denied further merit review of this case. Appellant did not meet any
requirements of 20 C.F.R. § 10.606(b)(2). She did not submit any evidence with her request for
reconsideration to establish that OWCP erroneously applied or interpreted a specific point of law
or advance a relevant legal argument not previously considered by OWCP. Pursuant to 20
C.F.R. § 10.608(b), OWCP properly declined to reopen the case for review of the merits.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128.
CONCLUSION
The Board finds that OWCP properly denied appellant’s May 29, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

9

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the June 19, 2014 nonmerit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: November 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 11-2139
Issued: May 9, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal from the May 13, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision finding that he failed to establish
that he sustained an injury as alleged. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty, causally related to factors of his federal
employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2011 appellant, then a 51-year-old city carrier, filed an occupational
disease claim alleging that he sustained constant pain in his left shoulder due to heavy lifting,
driving his vehicle and casing mail. He noted that he had a previous injury to his right shoulder
and a permanent insufficiency giving almost the entire burden to the left shoulder.2 Appellant
indicated that he first became aware of the injury and its relation to his work on March 21, 2011.
He did not stop work.
By letter dated April 5, 2011, OWCP advised appellant that additional factual and
medical evidence was needed. It explained that the physician’s opinion was crucial to his claim
and allotted appellant 30 days within which to submit the requested information.
By decision dated May 13, 2011, OWCP denied appellant’s claim. It found that the
evidence supported that the claimed events occurred; however, he failed to submit the necessary
medical evidence in support of his claim. OWCP noted that no medical evidence was submitted.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
2

The record indicates that appellant had a prior claim No. xxxxxx909 for an August 24, 2007 injury which was
accepted for insect bite of the right shoulder and upper arm, sprain of the right shoulder and upper arm,
acromioclavicular on the right. Appellant was working in a light-duty status which limited the use of his right arm.
This other claim is not presently before the Board.
3

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

4

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

2

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
ANALYSIS
OWCP found that appellant had established that he performed the duties of casing, lifting
mail, delivering mail and driving a vehicle. However, appellant did not submit any medical
evidence to establish that he sustained a left shoulder condition that was caused or aggravated by
any factors of his federal employment.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.6
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no medical evidence explaining how appellant’s employment duties caused or
aggravated a diagnosed left shoulder condition, appellant has not met his burden of proof in
establishing that he sustained a medical condition in the performance of duty causally related to
factors of employment.
On appeal, appellant noted that he was seeking treatment with his own personal physician
and his treatment was still in progress. As noted above, no medical evidence has been submitted
to establish that work duties caused or aggravated a diagnosed medical condition. 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 his burden of proof in establishing that he
sustained an injury in the performance of duty.

5

Id.

6

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

7

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-1523
Issued: December 3, 2008

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 April 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 28, 2007 and March 5, 2008 merit decisions denying
compensation for wage loss. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he was
entitled to wage-loss compensation for intermittent periods between May 12 and
December 23, 2006.
FACTUAL HISTORY
Appellant, a 50-year-old letter carrier, filed a Form CA-2 claim for benefits on June 8,
2006, alleging that he developed degenerative disc disease causally related to factors of
employment. The Office accepted the claim for lumbosacral spondylosis. It paid appropriate
compensation for periods of temporary total disability.
Appellant stopped work in

February 2006, returned to intermittent part-time light duties in June 2006 and stopped work on
March 26, 2007. He returned to full-time light duties on August 3, 2007.
On February 26, 2007 appellant submitted CA-7 forms requesting wage loss from May 8,
2006 to January 5, 2007. He also submitted time analysis sheets indicating that he was entitled
to intermittent disability compensation from May 11 through June 1, July 21, July 31 through
August 3, August 11 through 14 and August 21 through October 13, 2006. Appellant also
claimed partial disability for intermittent dates when light-duty work was not provided on
June 19 through July 15; July 2, August 10; August 17; October 17 through November 10;
November 30, 2006 and December 6, 2006 through January 5, 2007. He submitted payroll
records indicating the hours he worked from May 2006 to January 2007.
By letter dated April 30, 2007, the Office advised appellant that compensation was
payable for 163.93 intermittent hours claimed from June 10, 2006 through January 5, 2007
because limited-duty work was not available. It found that the medical evidence of record was
sufficient to support disability claimed from May 8 through 11, 2006. The Office stated:
“Compensation for the remaining time periods of disability is not currently
payable because the medical evidence of file does not support that you were
unable to perform any work at all. The medical evidence of file supports you
were able to work with restrictions.”
The Office informed appellant that additional medical documentation was necessary to
support wage-loss compensation for the remaining periods of disability requested.
Appellant submitted disability slips, e-mails and treatment notes indicating that he had
intermittent periods of wage loss from May 12 through December 2006. In a report dated
May 11, 2006, Dr. Anthony M. Wayne, Board-certified in orthopedic surgery and appellant’s
treating physician, noted appellant’s complaints of low back pain and pain in the left lower
extremity. He related that appellant believed his pain developed over a period of time due to the
physical demands and repetitive work requirements of his letter carrier job. Dr. Wayne opined
that appellant’s chronic preexisting condition of spondylosis was attributable to the natural aging
process but was aggravated by his job activities. He recommended that appellant limit his lifting
to no more than 25 pounds and avoid performing overtime work. In reports dated August 11
and 31, 2006, Dr. Wayne reiterated his findings and conclusions and that appellant was capable
of working with restrictions. On February 7, 2007 he stated:
“[Appellant] has been under my care ever since April 21, 2006 regarding his
lower back condition. He has degenerative disc disease (lumbar spondylosis).
This is a condition that was aggravated by his job activities over a period of some
years. [Appellant] was unable to work from March 15 through June 6, 2006 due
to his condition and he was also unable to work from August 21 through
September 13, 2006 due to the same condition.
In a June 22, 2007 letter, the Office requested additional medical evidence to support
compensation for total disability from May 24 to June 8, 2006.

2

By decision dated June 28, 2007, the Office denied appellant’s claim for wage-loss
compensation. It accepted appellant’s claims for wage loss for temporary total disability from
May 8 through 11, 2006, plus a total of 163.93 intermittent hours due to the unavailability of
limited duty for the following dates: June 10, 19, 20, 21, 23, 27 and 29, July 15 and 26, August 10,
and 17, October 17, 18, 19, 23 to 28 and 31, November 1 to 2, 9 to 10 and 30, December 6, 13 to
16, 18, 20 to 22, 26, 28 and 30, 2006; and January 3 and 5, 2007. The Office found appellant had
submitted documentation establishing that he attended medical appointments on June 1 and
August 1, 2006, for which he was awarded four hours of compensation on each date. It stated that
there was insufficient medical evidence to establish entitlement to temporary total disability for the
remaining four hours on those dates or for the remaining 56 intermittent dates claimed from
May 12 through December 23, 2006. The Office further noted that the reports from Dr. Wayne
advised that he was capable of working with restrictions. It concluded that the medical evidence
did not establish that he was either disabled or attending a medical examination for the dates
claimed.
By letter dated July 5, 2007, appellant’s attorney requested an oral hearing, which was held
on December 20, 2007. Appellant did not submit any new medical evidence disability.
By decision dated March 5, 2008, an Office hearing representative affirmed the June 28,
2007 decision, finding appellant failed to submit medical evidence establishing.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim by the weight of the
evidence.2 Under the Act, the term disability is defined as an inability, due to an employment
injury, to earn the wages the employee was receiving at the time of injury, i.e., an impairment
resulting in loss of wage-earning capacity.3 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.4 Whether a particular injury causes an employee to become disabled for
work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.5 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.6 The Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

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

6

Manual Garcia, 37 ECAB 767 (1986).

3

for which compensation is claimed. To do so would essentially allow an employee to self-certify
his disability and entitlement to compensation.7
ANALYSIS
In support of his claim, appellant submitted CA-7 forms for intermittent periods from
May 2006 to January 2007. The Office paid wage-loss compensation for May 8 through 11,
2006, plus a total of 163.93 intermittent hours due to the unavailability of limited duty from
May 2006 through January 2007. The Office denied four hours of compensation on several days
for which he had claimed eight hours of leave without pay, noting that he was entitled to no more
than four hours of compensation for routine medical appointments. It noted that, while longer
periods of time were allowed when required by the nature of the medical procedure and/or the need
to travel a substantial distance to obtain the medical care, appellant failed to provide sufficient
medical evidence to support that he was disabled or attending a medical examination on the dates
claimed.
The medical reports of record do not establish that he was disabled beyond the periods
for which the Office awarded him compensation. Appellant did submit a February 7, 2007 report
from Dr. Wayne, who indicated that he was unable to work from March 15 through June 6, 2006
and from August 21 through September 13, 2006 due to his accepted degenerative disc, lumbar
spondylosis condition. However, this opinion contradicted three prior reports Dr. Wayne
submitted from May 11 to August 31, 2006 in which he stated that appellant was able to work
within restrictions. Dr. Wayne’s opinion on causal relationship is of diminished probative value
in that he did not provide adequate medical rationale in support of his conclusions.8 Moreover,
his opinion was generalized in nature and equivocal. Dr. Wayne’s February 2007 report
contradicted his May and August 2006 opinions regarding appellant’s work capacity, suggesting
that he lacked an accurate history of appellant’s condition.9 Appellant has failed to provide
sufficient medical evidence to establish disability as claimed. The Board finds that the Office
properly determined in its June 28, 2007 decision that he did not establish disability for wage loss
beyond that paid.
Following the June 28, 2007 decision, appellant requested an oral hearing but did not
submit any additional medical evidence. He resubmitted medical reports and documents of record.
By decision dated March 5, 2008, the Office hearing representative affirmed the June 28, 2007
decision, finding that appellant had failed to submit medical evidence establishing beyond that
for which he had received compensation. The Office hearing representative properly denied
appellant compensation for wage loss.

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

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

9

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

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
disabled and had wage loss for intermittent periods from May 12 and December 23, 2006
causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2008 and June 28, 2007 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: December 3, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Palm Beach, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-516
Issued: March 10, 2011

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 December 14, 2009 appellant’s counsel timely appealed the November 17, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for wageloss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.1
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the periods
March 4 through November 28, 2005 and July 17, 2006 through September 6, 2007.

1

The record on appeal contains evidence received after the Office issued its November 17, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2009). Appellant’s counsel requested a hearing before the Board, but did not otherwise
explain the need for oral argument. Given the disposition of the current appeal, the Board in its discretion denies
counsel’s request for oral argument. See 20 C.F.R. § 501.5(a), (b).

FACTUAL HISTORY
Appellant, a 53-year-old housekeeping aide, sustained an employment-related injury on
December 6, 2004 while moving furniture. The Office accepted his claim for left hip/gluteus
strain, left knee strain and lumbar strain left. It noted that there was evidence of preexisting
chronic degenerative disc disease, lumbar spondylosis and disc herniations at L1-2 and L4-5.
The Office explained that appellant needed to submit further medical evidence before any
additional conditions could be accepted as being causally related to the December 6, 2004
employment injury.
Beginning January 2005, appellant performed light-duty work folding linen in the
laundry.2 He stopped work on March 4, 2005 and did not return until November 16, 2005, at
which time he accepted a full-time, limited-duty assignment performing clerical duties.3
Appellant subsequently filed a claim for wage-loss compensation for the period March 4
through November 28, 2005.4
By decision dated August 25, 2006, the Office denied wage-loss compensation for the
claimed period and beyond. It further advised that additional medical conditions had not been
accepted and the claim was closed because the medical evidence indicated that appellant’s
accepted conditions had resolved.5 As such, appellant’s medical benefits were also terminated.
In a decision dated December 13, 2006, the Branch of Hearings & Review set aside the
Office’s August 25, 2006 decision. An Office hearing representative remanded the case for
further medical development regarding employment-related disability and whether the
December 6, 2004 employment incident caused or contributed to appellant’s lumbar disc
pathology. She also found that the Office terminated medical benefits without having provided
appellant a pretermination notice and an opportunity to respond.
Dr. D. Barry Lotman, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on February 16, 2007. He diagnosed lumbar spondylosis, lumbar strain
resolved, left gluteus strain resolved, left knee strain resolved, left medial meniscus tear and
probable facet arthropathy with low back pain radiating to the left buttock. Dr. Lotman
attributed the left medial meniscus tear to appellant’s December 6, 2004 employment injury. He
indicated that the employment injury aggravated appellant’s underlying lumbar spondylosis.
Dr. Lotman reviewed appellant’s previous limited-duty assignments and advised that he should
have been able to perform the laundry room assignment as well as his position in social services
2

The work was to be performed while seated at a table. Appellant also briefly performed light housekeeping
duties picking up discarded cigarette butts.
3

The employing establishment assigned appellant to the Social Service Office, Chaplin Services where his duties
included answering telephones, light typing, intermittent filing and assisting veterans and office staff.
4

The employing establishment certified (Form CA-7a) that appellant was absent from work (temporary total
disability) from March 4 through November 15, 2005 and he claimed 22.5 hours of intermittent wage loss from
November 22 through 28, 2005.
5

His employee medical records revealed that appellant’s accepted back and knee sprains had resolved as of
December 20, 2004 and he was released to resume full, unrestricted duty.

2

answering telephones. With respect to the previously accepted lumbar, knee and gluteus strains,
he found that each condition had resolved without residuals. Appellant’s work restrictions
included one hour of walking and standing, no twisting or bending/stooping, no reaching above
shoulder and no squatting, kneeling or climbing. He was also limited to two hours of pushing,
pulling and lifting, with a 30-pound restriction.
On March 30, 2007 the Office accepted appellant’s claim for left knee meniscus tear and
left side aggravation of preexisting lumbosacral spondylosis without myelopathy.
After appellant returned to work in November 2005 performing clerical duties he
accepted an unspecified limited-duty position in “EMS” effective February 17, 2006. He
stopped work on July 17, 2006. On May 22, 2007 appellant filed a claim for disability
compensation beginning July 17, 2006. He returned to work on September 7, 2007 as a modified
laundry worker.
The Office issued two separate decisions on January 11, 2008: one denied wage-loss
compensation for the period March 4 through November 28, 2005 and the other denied
compensation on or after July 17, 2006. It based both decisions on Dr. Lotman’s February 16,
2007 report, which found appellant capable of performing his previous limited-duty assignments.
The Office referred appellant for another second opinion evaluation in November 2007.
Dr. Richard Steinfeld, a Board-certified orthopedic surgeon, examined appellant on
December 18, 2007 and diagnosed low back pain, lumbar radiculopathy and left medial
meniscus tear. He advised that appellant could perform his previous duties answering telephones
at social services. Dr. Steinfeld stated that it appeared appellant’s accepted injuries had resolved.
He was uncertain, however, whether appellant’s radicular symptoms occurred at the time of his
employment injury or afterwards. Dr. Steinfeld imposed permanent, part-time (four hours) work
restrictions due to appellant’s lumbar radiculopathy. His restrictions included a 10-pound weight
restriction. On January 9, 2008 the Office sought clarification of Dr. Steinfeld’s opinion,6 but it
did not await a response before issuing its January 11, 2008 decisions. In a January 15, 2008
supplemental report, Dr. Steinfeld stated that appellant’s lumbar radiculopathy appeared to be
purely subjective. He commented that it appeared that appellant would be able to return to a
light-duty assignment. Dr. Steinfeld also reviewed appellant’s latest limited-duty assignment as
a modified laundry worker and found that appellant should be able to perform the requirements
of the position.
By decision dated March 19, 2008, the Branch of Hearings & Review set aside the
Office’s January 11, 2008 decisions. An Office hearing representative found that the Office’s
development of the case was inadequate and potentially prejudicial. She did not find the
opinions of either Dr. Lotman or Dr. Steinfeld particularly persuasive. Dr. Lotman did not offer
sufficient explanation for his finding that appellant’s various employment-related strains had
resolved. As to Dr. Steinfeld, the Office hearing representative found his opinion speculative.
6

The Office informed Dr. Steinfeld that appellant had not complained of lumbar radiculopathy when initially
injured. It was reportedly first mentioned in the medical records after appellant returned from vacation in early
January 2005. However, employee health records indicated that he complained of “left lower extremity radiation”
as early as December 15, 2004, which was prior to his vacation.

3

She also noted that the statement of accepted facts provided to Dr. Steinfeld did not reference
appellant’s accepted left knee meniscus tear or left-sided aggravation of preexisting lumbosacral
spondylosis. The Office hearing representative further noted that the Office’s statement
regarding the onset of appellant’s radicular symptoms was potentially prejudicial. The case was
remanded to the Office with instructions to amend the statement of accepted facts and refer
appellant for another second opinion evaluation.
On remand, the Office referred appellant to Dr. Merrill W. Reuter, a Board-certified
orthopedic surgeon.7 In a report dated December 30, 2008, Dr. Reuter diagnosed lumbar disc
pathology with associated lumbar spondylosis, strain/sprain resolved, gluteal strain resolved and
probable medial meniscus tear left knee. He noted that appellant had not recently undergone a
magnetic resonance imaging (MRI) scan and an updated diagnostic study would be “beneficial to
assess his current condition and determine if additional intervention would be warranted.”8
Dr. Reuter also noted that electrodiagnostic testing “would prove to be helpful in assessing
[appellant’s] complaints.” He found that appellant’s low back and left knee complaints were
consistent with the objective findings and his current symptomatology was related to the
December 6, 2004 employment injury. Dr. Reuter did not believe, however, that it was related
by way of aggravation of a preexisting condition, but by direct cause. He also noted that there
was some permanency with regard to appellant’s injury. Dr. Reuter further noted that appellant
was capable of light duty with no lifting greater than 20 pounds and no repetitive bending,
stooping and squatting.
In an April 10, 2009 decision, the Office denied appellant’s claim for compensation for
the periods March 4 through November 28, 2005 and July 17, 2006 through
September 16, 2007.9 It found that Dr. Reuter’s December 30, 2008 report established that
appellant was capable of performing his previous limited-duty assignments as described in the
statement of accepted facts.
Appellant requested an oral hearing, which was held on August 13, 2009. By decision
dated November 17, 2009, the hearing representative affirmed the Office’s April 10, 2009
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that

7

The Office provided Dr. Reuter an amended statement of accepted facts dated November 28, 2008 that reflected
the additional lumbar and left knee conditions accepted on March 30, 2007. The amended statement of accepted
facts also noted that appellant returned to work on July 9, 2007 as a modified laundry worker.
8

Dr. Reuter obtained lumbar x-rays as part of his December 30, 2008 examination, but the latest lumbar MRI
scan referenced in his report was dated September 30, 1995.
9

While the Office denied compensation through September 16, 2007, the record indicates that appellant returned
to work on September 7, 2007.

4

caused the illness.10 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
an assignment are altered so that they exceed his established physical limitations.11 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he was no longer able to perform the light-duty assignment.12
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.13 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.14 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.15
ANALYSIS
The Office relied on Dr. Reuter’s December 30, 2008 report to deny appellant’s claim for
wage-loss compensation for the periods March 4 through November 28, 2005 and July 17, 2006
through September 6, 2007. The Board finds that the case is not in posture for decision.
When the Office referred the case to Dr. Reuter in November 2008, it requested that he
address whether appellant was able to perform the modified-duty jobs from March 4 to
November 28, 2005 and July 17, 2006 to September 16, 2007. Although Dr. Reuter noted that
appellant was able to perform light duty with no lifting greater than 20 pounds and no repetitive
bending, stooping and squatting, he did not address the question as to whether appellant was
capable of performing his previous limited-duty assignments. He did not address the abovenoted periods of disability or whether appellant was able to continue performing the modified
duties assigned him either in the laundry room or social services. Furthermore, the Office’s
reliance on Dr. Reuter’s opinion was misplaced given his statement that further testing, including
obtaining a current lumbar MRI scan would be both “helpful” and “beneficial” in assessing
appellant’s current condition. The latest MRI scan predated his examination by 13 years.

10

20 C.F.R. § 10.5(x).

11

Id.

12

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

13

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
14

See Helen K. Holt, supra note 13.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

5

The Board also notes that the statement of accepted facts incorrectly reported that
appellant returned to work on July 9, 2007. The identified date was when he accepted the
position as a modified laundry worker, not the date he returned to work. The employer indicated
that appellant did not resume work until September 7, 2007. The Board further notes that the
January 19, 2007 statement of accepted facts and the November 28, 2008 addendum do not
reference a limited-duty assignment appellant accepted on February 17, 2006. The offered
position was in facilities management and the job description was “duties as assigned except for
lifting trash bags (assistance provided).” The statement of accepted facts did not set forth an
accurate history of appellant’s work duties. The February 17, 2006 job offer does not appear to
be the same job he performed when he resumed work in November 2005 in social services. The
record is also unclear whether this position was similar to appellant’s previous duties in the
laundry.
The statement of accepted facts also referenced a June 21, 2005 limited-duty assignment
in the laundry. The record includes a copy of this particular job description, along with
appellant’s signed acceptance. The statement of accepted facts indicated that he sporadically
performed the position on a part-time basis between June 21 and July 18, 2005. The employing
establishment certified (Form CA-7a) on May 23, 2006 that appellant was on temporary total
disability eight hours leave without pay a day from March 4 through November 15, 2005.16
The first page of Dr. Reuter’s December 30, 2008 report incorporated in large part the
Office’s statement of accepted facts, including the unresolved discrepancies regarding
appellant’s various modified work employment activities. Once the Office undertakes
development of the record, it must do a complete job in procuring medical evidence that will
resolve the relevant issues in the case.17 Dr. Reuter’s opinion is both inaccurate and incomplete.
He did not address the issue of whether appellant was able to perform his previous limited-duty
assignments during the periods March 4 through November 28, 2005 and July 17, 2006 through
September 6, 2007. Accordingly, the case is remanded to the Office for further development.
After the Office has developed the case record to the extent it deems necessary, a de novo
decision shall by issued.
CONCLUSION
The case is not in posture for decision.

16

It is also noteworthy that while the employing establishment provided a CA-7a form for the above-noted
period, it did not provide a similar time analysis for the claimed period July 17, 2006 through September 6, 2007.
17

Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: March 10, 2011
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

7


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

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

Docket No. 08-1842
Issued: January 21, 2009

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 June 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 3, 2008 denying her claim for compensation
and a May 30, 2008 decision denying further merit review. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an injury causally related to factors
of her federal employment; and (2) whether the Office properly determined that appellant’s
application for reconsideration was insufficient to warrant further merit review.
FACTUAL HISTORY
On January 14, 2008 appellant, then a 49-year-old mail carrier filed an occupational
disease claim (Form CA-2) alleging that she sustained degenerative disc disease and bulging
discs causally related to her federal employment. In an undated statement, she identified lifting,

bending, twisting, climbing, pulling and walking as the employment factors contributing to her
condition. Appellant indicated that she had prior work-related back injuries in 1993 and 1995.1
In a July 31, 2007 report, Dr. Frederick Graham, a physiatrist, indicated that appellant
was seen for low back pain with radiation into the left leg as well as neck and right shoulder
pain. Dr. Graham reported that x-rays revealed degenerative disc disease in the lumbar and
cervical spine. In a November 27, 2007 report, he stated that a magnetic resonance imaging
(MRI) scan showed cervical degenerative changes at C4-7, with moderate left foraminal
narrowing and spurring at C4-5. Dr. Graham also indicated that the MRI scan showed L3-4 and
L4-5 disc disease. He reported in his history that appellant “states work aggravates her
condition.”
By letter dated January 25, 2008, the Office requested that appellant submit additional
factual and medical evidence. Appellant submitted reports dated December 17, 19 and 21, 2005
from Dr. Philip Bobo, an emergency medicine specialist, diagnosing a lumbar strain. In a
February 8, 2007 report, Dr. David Fernandez, a physiatrist, diagnosed lumbar strain with
radiculopathy and in a February 10, 2007 report Dr. Dale Christensen, a family practitioner,
diagnosed lumbar radiculopathy. Appellant also submitted a narrative statement again
describing the identified work factors.
In a decision dated April 3, 2008, the Office denied the claim for compensation. It found
the medical evidence was insufficient to establish the claim.
On May 19, 2008 appellant requested reconsideration of her claim. She stated she
continued to have back problems since 1995 and felt her job aggravated her back condition.
Appellant also indicated that she was sending in a new medical report.
By decision dated May 30, 2008, the Office found the application for reconsideration was
insufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
1

The record contains a June 29, 1995 Office letter accepting lumbar herniated disc under OWCP File No.
xxxxxx433.
2

5 U.S.C. §§ 8101-8193.

3

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

2

alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized; the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS -- ISSUE 1
Appellant provided factual statements identifying employment factors that included
lifting, bending, twisting, pulling, climbing and walking. It is her burden of proof to submit
rationalized medical opinion evidence on causal relationship between a diagnosed condition and
the identified employment factors.
None of the medical reports before the Office at the time of its April 3, 2008 merit
decision provided a rationalized medical opinion on the causal relationship of her claimed back
Dr. Graham diagnosed lumbar and cervical
condition with her federal employment.8
degenerative discs, without discussing causal relationship. He briefly indicated a November 27,
2007 report that appellant felt her job aggravated her condition, without providing his own
opinion on the issue. The medical evidence does not contain a report with a complete history
and discussion of the identified work factors and a rationalized medical opinion relating a
diagnosed condition to appellant’s federal employment. The Board finds appellant did not meet
her burden of proof and the Office properly denied the claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.9 The

4

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

5

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

6

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

7

Id.

8

Appellant did submit additional evidence on appeal, but the Board’s jurisdiction is limited to review of the
evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).
9

5 U.S.C. § 8128(a).

3

employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”10
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.11
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.12
ANALYSIS -- ISSUE 2
In the May 19, 2008 application for reconsideration, appellant indicated her belief that
her continuing back problems were employment related. She did not show that the Office
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by the Office. Appellant indicated that she was submitting additional
evidence, but the record does not contain any new medical evidence prior to the May 30, 2008
decision. As noted above, the Board can review only evidence that was before the Office at the
time of is final decision. Appellant did not submit new and relevant evidence with her
application for reconsideration.
The Board therefore finds appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Since appellant failed to meet at least one of these requirements, the Office
properly denied the application without merit review.
CONCLUSION
Appellant did not meet her burden of proof to submit rationalized medical evidence
establishing a lumbar or cervical condition causally related to her federal employment. On
application for reconsideration, she did not meet the requirements of 20 C.F.R. § 10.606(b)(2),
and therefore the Office properly denied merit review.

10

20 C.F.R. § 10.605 (1999).

11

Id. at § 10.606(b)(2).

12

Id. at § 10.608.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 30 and April 3, 2008 are affirmed.
Issued: January 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 19-0159
Issued: May 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 29, 2018 appellant filed a timely appeal from an August 21, 2018 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 to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted May 27, 2018 employment incident.
FACTUAL HISTORY
On July 16, 2018 appellant, then a 53-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that, while in the performance of duty on May 27, 2018, he injured his knee
and hip when he jumped off the employing establishment dock to assist an employee who had
fallen. In an attached statement, he indicated that he got off his forklift, then ran and jumped off
the dock to prevent a tractor-trailer operator from backing up to the door and seriously injuring his
fallen coworker. Appellant further stated that, over a period of time after the May 27, 2018
incident, he developed knee and hip pain. He stopped work on July 16, 2018.
A July 16, 2018 emergency department visit/discharge summary indicated that appellant
received treatment for right knee arthralgia. Appellant was advised to take Tylenol/Motrin for
pain and prescribed a nonsteroidal anti-inflammatory topical gel (Voltaren). He was also excused
from work for two days. The work excuse note was signed by Debra L. Conway, a licensed
practical nurse.
By development letter dated July 20, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish the claim. It advised him of the type of factual and medical
evidence needed, and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In response, appellant submitted two July 24, 2018 statements from his coworkers, R.R.
and J.B., who witnessed the May 27, 2018 incident when an employee fell from the loading dock
and appellant jumped off the dock, approximately 4½ to 5 feet to the ground to prevent the tractortrailer operator from backing up onto the fallen employee.
OWCP received additional emergency department treatment records from July 16, 2018,
which included a right knee x-ray that revealed mild tri-compartmental osteoarthritis with small
joint effusion. There was no significant soft tissue swelling, no acute osseous abnormality, and no
evidence of acute fracture or dislocation.
Dr. Martin D. Klinkhammer, a Board-certified emergency medicine specialist, examined
appellant on July 16, 2018 for complaints of right knee pain. Appellant reported that, while at
work “two weeks ago,” he jumped off a dock to try and help a coworker who was close to getting
run over by a truck. He thought he may have landed awkwardly injuring his right knee. Appellant
reported having experienced pain since then while walking on his right leg, but was able to bear
weight on the leg. He was also able to conduct his normal business. Additionally, appellant
reported occasional hip pain, but no such pain with walking. On physical examination
Dr. Klinkhammer noted slight right knee effusion, tenderness with varus strain, but no laxity, a
normal Lochman’s posterior drawer, and no definite click with McMurray’s testing. He also
reviewed the results of appellant’s recent right knee x-ray. Dr. Klinkhammer diagnosed right knee
arthralgia.

2

In an August 6, 2018 note, Dr. Tommy T. Osborne, II, a Board-certified orthopedic
surgeon, indicated that he had evaluated appellant that day, and appellant would be unable to work
for two weeks. He also provided an August 6, 2018 duty status report (Form CA-17) with a
May 27, 2018 date of injury when appellant jumped off a dock to stop a trailer from backing up
onto an employee. Dr. Osborne diagnosed right knee medial meniscus tear and lumbar paraspinal
strain. OWCP also received unsigned August 6, 2018 treatment notes with a May 27, 2018 history
of injury of “[patient] jumped off loading dock.” The diagnosis was right lumbar paraspinal
muscle strain. On August 6, 2018 Dr. Osborne also referred appellant for right knee and lumbar
magnetic resonance imaging (MRI) scans. His referring diagnoses included right knee medial
meniscus tear and right-sided traumatic lumbar herniated disc with radiculopathy.
By decision dated August 21, 2018, OWCP denied appellant’s traumatic injury claim
because he failed to establish a medical diagnosis in connection with the accepted May 27, 2018
employment incident as “pain” is a symptom and not a medical diagnosis. It found that appellant
had not satisfied the medical component of fact of injury and, thus, did not meet the requirements
for establishing an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 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.8 The second component is whether the employment incident caused a personal

3

Supra note 1.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

3

injury.9 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 claimed is
causally related to the injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 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).13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that the May 27, 2018 employment incident occurred as alleged.
However, it denied appellant’s traumatic injury claim because the record purportedly did not
contain a medical diagnosis in connection with the accepted employment incident, noting that
“‘pain’” was not a diagnosis. OWCP correctly noted pain (arthralgia) is a symptom, not a medical
diagnosis, and as such, is insufficient to satisfy the medical component of fact of injury.14
However, OWCP failed to acknowledge that, on August 6, 2018, Dr. Osborne diagnosed both right
knee and lumbar conditions in connection with appellant’s May 27, 2018 employment incident.
Accordingly, the Board finds that appellant has established the medical component of fact of
injury. OWCP’s August 28, 2018 decision shall be set aside and remanded. On remand, following
any further development as deemed necessary, it shall issue a de novo decision on the issue of
causal relationship.
CONCLUSION
The Board finds the case not in posture for decision.

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.

14

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012); E.M., Docket
No. 18-1599 (issued March 7, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: May 7, 2019
Washington, DC

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

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

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

5


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

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

Docket No. 08-1378
Issued: December 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 8, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 28, 2008 which denied his claim for a
recurrence of disability commencing November 21, 2007. 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 established that he sustained a recurrence of disability on
November 21, 2007 causally related to his September 7, 2006 employment injury.
FACTUAL HISTORY
On September 7, 2006 appellant sustained injury when he lost control of a postal vehicle
and rolled numerous times. His claim was accepted for bilateral closed fracture of the scapula,
bilateral closed fracture of the ribs, bilateral sprain of shoulder and upper arm, subscapularis and
other specified sites, bilateral joint derangement in upper arms, pain in thoracic spine, and pain in

joint lower right leg. On September 26, 2006 appellant was terminated from his employment for
administrative reasons: two separate motor vehicle accidents during his probationary period.
Appellant filed claims for compensation from October 23, 2006 to April 2, 2007 for
which he was paid on the periodic and supplemental rolls. On March 28, 2007 he had right
shoulder arthroscopy with subacromial decompression and open subscapularis repair with biceps
tenodesis. On May 23, 2007 appellant had a left shoulder scope with arthroscopic subacromial
decompression, open subscapularis tendon repair, and biceps tenodesis.
In a September 10, 2007 report, Dr. Brett F. Gemlick, a Board-certified orthopedic
surgeon, stated that appellant was six months post right open subscapularis repair and four
months status post left open subscapularis repair, had completed formalized physical therapy and
was doing well. He found that appellant could return to work without restrictions.
In a December 14, 2007 report, Dr. Gemlick noted that appellant was performing
physical work at his job and became very sore. He reported that appellant was released from his
job when he could not perform due to pain in both shoulders. Dr. Gemlick noted that he did not
see any significant retearing upon physical examination. He also stated that appellant could not
do the kind of job he was used to doing.
On January 7, 2008 appellant filed a recurrence of disability claim alleging that on
November 21, 2007 he sustained disability due to his accepted conditions. He argued that the
repetitive arm movement caused him pain and loss of strength. Appellant also informed the
Office that Dr. Gemlick released him to full duty on September 10, 2007.
In a January 18, 2008 letter, the Office requested additional information from appellant,
specifically the reason for his work stoppage on November 21, 2007.
In a February 5, 2008 note, Dr. Gemlick opined that appellant had reached maximum
medical improvement and that the current work restrictions of 10 pounds constantly, 10 to 25
pounds frequently and 40 pounds occasionally, were valid. He also opined that appellant’s
condition worsened before he stopped work, and that, as he did not have any impairment prior to
the injury, he thought the worsening was a result of the work-related injury. A January 29, 2008
functional capacity evaluation report from a physical therapist addressed appellant’s physical
abilities and limitations.
Referral forms from Dr. Gemlick and Dr. Roger Thomas, Board-certified in physical
medicine and rehabilitation, were submitted. In a February 8, 2008 memorandum, appellant’s
former employer verified that appellant was hired on October 4, 2007 and terminated on
November 21, 2007 due to his inability to perform the job.
In a March 28, 2008 decision, the Office denied appellant’s claim for a recurrence of
disability beginning on November 21, 2007. It found that appellant had not established that his
claimed disability was a result of his accepted work injury.

2

LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”1 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable,
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.2 Where no such rationale is present, medical evidence
is of diminished probative value.3
ANALYSIS
The Office accepted that appellant sustained bilateral closed fracture of the scapula,
bilateral closed fracture of the ribs, bilateral sprain of shoulder and upper arm, subscapularis and
other specified sites, bilateral joint derangement in upper arms, pain in thoracic spine, and pain in
joint lower right leg as a result of his federal employment.
On September 10, 2007 appellant was approved by his attending physician to return to
work without restrictions. On October 4, 2007 he began private-sector employment. On
November 21, 2007 appellant was terminated due to not being able to perform his job. He
alleged that he sustained a recurrence of total disability on November 21, 2007 due to his
September 7, 2006 employment injury. Appellant has the burden of providing sufficient
evidence, including rationalized medical evidence, to establish the causal relationship asserted.4
Appellant submitted reports from Dr. Gemlick. On December 14, 2007 Dr. Gemlick
stated that appellant was performing physical work at his job in the private sector and became
sore. He also noted that appellant was released from work due to shoulder pain. In a February 5,
2008 note, Dr. Gemlick opined that appellant’s condition had worsened before he stopped work.
As appellant did not have impairment prior to injury, the worsening was a result of the workrelated injury. The brief notes of Dr. Gemlick are not sufficient to establish appellant’s claim.
He did not provide a history of appellant’s work duties in the private sector or address how his
disability related to any residuals of the accepted injury. Additionally, Dr. Gemlick has not
explained how appellant’s current physical condition is causally related to his accepted
employment injury.

1

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

Ricky S. Storms, 52 ECAB 349 (2001).

3

The Board notes that on September 10, 2007 appellant was released to return to his
federal employment without any work restrictions. Dr. Gemlick did not describe the nature of
the duties appellant performed in the private sector or how residuals of his accepted injury would
contribute to his disability. To establish causal relationship, appellant must submit a physician’s
report in which the physician reviews the employment factors identified by appellant as causing
his condition and, taking these factors into consideration as well as findings upon examination,
state whether the employment injury caused or aggravated the diagnosed conditions and present
medical rationale in support of his opinion.5 The medical reports are insufficient to establish that
appellant sustained a recurrence of disability causally related to his September 7, 2006 injury.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability commencing November 21, 2007 causally related to his accepted September 7, 2006
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2008 is affirmed.
Issued: December 1, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

D.D., 57 ECAB 734 (2006), Calvin E. King, 51 ECAB 394 (2000).

4