United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Hank Royal, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-155
Issued: May 1, 2007

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 October 23, 2006 appellant, through her representative, filed a timely appeal from a
November 7, 2005 merit decision of the Office of Workers’ Compensation Programs terminating
her compensation and a nonmerit decision dated February 9, 2006 denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case and over the February 9, 2006 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s entitlement to
compensation benefits effective January 30, 2004 on the grounds that she had no further
disability due to her December 16, 1999 employment injury; (2) whether the Office properly
terminated authorization for medical benefits; (3) whether appellant has established that she had
continuing disability after January 30, 2004 due to her December 16, 1999 employment injury;
and (4) whether the Office properly denied her request for review of the merits of her claim
under 5 U.S.C. § 8128.

FACTUAL HISTORY
On February 17, 2000 appellant, then a 53-year-old customer service supervisor, filed a
traumatic injury claim alleging that she reinjured her neck and lower back on December 16, 1999
when she stepped on a broken tile and fell through the floor. The Office previously accepted that
appellant sustained a strain of the neck, left shoulder and lumbar spine due to a May 6, 1999
motor vehicle accident. The claim was assigned file number 131189616. The Office assigned
the December 16, 1999 work injury file number 132007926 and accepted the claim for an
aggravation of the lumbar spine.1
In a report dated December 7, 2001, Dr. David Wren, Jr., an attending orthopedic
surgeon, discussed appellant’s history of injury on May 6 and December 16, 1999. He diagnosed
cervical and trapezial strain, possible cervical radiculitis, chronic low back pain, lumbar disc
disorder with disc protrusion at L5-S1 and foraminal stenosis at L4-5 and L5-S1 and lumbar
radiculitis. Dr. Wren opined that appellant should work only four hours per day with restrictions
beginning December 10, 2001. Appellant received compensation for partial disability from the
Office beginning December 10, 2001.
On February 1, 2002 the Office referred appellant to Dr. Jerrold M. Sherman, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated February 19,
2002, Dr. Sherman discussed appellant’s December 16, 1999 employment injury. He noted that
she had a prior work injury to her neck and lower back in March 1999, when she was in a motor
vehicle accident.2 Dr. Sherman interpreted a December 2000 magnetic resonance imaging
(MRI) scan study as showing arthritic changes at L4-5 and L5-S1 with foraminal stenosis but no
nerve root impingement. He diagnosed nonemployment-related osteoarthritis of the lumbar
spine without neurological deficit and resolved lumbosacral strain due to the December 16, 1999
employment injury. Dr. Sherman found that appellant had no disability resulting from the
December 16, 1999 work injury. He stated: “She has a disability involving her lumbar spine
prior to the December 16, 1999 incident, which would prevent her from doing repetitive forward
bending or lifting of weights heavier than 25 pounds due to her nonindustrial osteoarthritis and
the sprain of the lumbar spine that occurred in March 1999.”
On February 28, 2002 the Office requested that Dr. Wren review and comment on
Dr. Sherman’s findings. On March 14, 2002 Dr. Wren disagreed with Dr. Sherman’s conclusion
and noted that the MRI scan study showed a “significant disc protrusion at the L5-S1 level” with
neural foraminal stenosis, osteophyte formation and facet joint arthritis at L5-S1. He attributed
appellant’s back condition to her May 1999 and December 16, 1999 work injuries. Dr. Wren
stated:
“The injury that [appellant] sustained at work on December 1[6], 1999 has not
resolved. That injury resulted in injury to the disc as well as an aggravation of an
underlying arthritic condition. [Appellant] has not had a resolution of the

1

By decision dated September 6, 2000, the Office denied appellant’s claim for continuation of pay as untimely.

2

The date of appellant’s work-related motor vehicle accident was May 6, 1999.

2

lumbosacral injury and continues to be symptomatic as a result of the job injury of
December 16, 1999 and to a lesser extent by the job injury of May 1999.”
Dr. Wren noted that appellant began working six hours per day on February 11, 2002. In a
progress report dated March 14, 2002, he found that appellant could resume full-time
employment with restrictions.
The Office determined that a conflict in medical opinion existed between Dr. Sherman
and Dr. Wren on the issue of whether appellant had continuing residuals from her December 16,
1999 work injury. The Office referred appellant to Dr. Arthur M. Auerbach, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated June 12, 2002,
Dr. Auerbach reviewed the medical evidence of record, including the results of objective studies,
discussed her history of injury and listed detailed findings on physical examination. He
reviewed the December 2001 MRI scan study and found that it showed degenerative disc disease
and bulging discs at L4-5 and L5-S1, a 50 percent narrowing of the intervetebral disc space and
some disc bulging into the L5-S1 foramen without nerve root irritation. Dr. Auerbach noted that
appellant experienced no back pain prior to her May 1999 motor vehicle accident. Appellant
was working with restrictions due to the motor vehicle accident at the time of her December 16,
1999 work injury. Dr. Auerbach stated:
“I do not believe orthopedically that [appellant] continues to suffer from the
residuals of her December 16, 1999 industrial injury, aggravation of her
preexisting problem secondary to a motor vehicle accident on the job of
May 1999 where, among other injuries, she injured her low back and aggravated a
degenerative disc disease. [Her] lumbar spine aggravation of December 16, 1999
has dissipated completed. She has no present work restrictions due to the
December 16, 1999 temporary aggravation of her preexisting condition that
aggravated her lumbar spine. That aggravation again has resolved. Any restricted
activities that she has are due to her preexisting condition, osteoarthritis of the
lumbar spine, secondary to the aggravation of osteoarthritis, lumbar spine, in the
motor vehicle accident at work of May 1999.”
Dr. Auerbach found that appellant could work full time with restrictions due to her May 1999
motor vehicle accident, which he found “aggravated her preexisting but apparently asymptomatic
degenerative arthritic low back problem.”
On August 29, 2002 the Office notified appellant that it proposed to terminate her
compensation and medical benefits on the grounds that she had no further employment-related
residuals. In a decision dated October 16, 2002, the Office finalized the termination of
compensation. Appellant requested an oral hearing. By decision dated June 12, 2005, an Office
hearing representative set aside the October 16, 2002 decision. The hearing representative
instructed the Office to double the case with appellant’s May 1999 work injury, assigned file
number 131189616 and request clarification from Dr. Auerbach regarding whether she had
continuing residuals from either work injury.

3

On June 25, 2003 the Office provided Dr. Auerbach with both case files and a revised
statement of accepted facts. The Office requested that he discuss whether appellant had any
further disability or residuals due to either employment injury. In a report dated September 8,
2003, Dr. Auerbach reviewed the evidence from both case records. He stated:
“The claimant has a subsidiary claim with a date of injury [of] May 6, 1999. Left
cervical strain, left trapezius strain [and] low back strain have been accepted as
work related. Based on the current objective findings and review of past medical
records for both claims [file numbers] 132007926 and 131189616, there is a disc
injury due to the December 16, 1999 industrial injury. The claimant’s May 6,
1999 industrial injury presents no change in my previous medical treatment made
on June 12, 2002. With the additional medical evidence that there is an accepted
May 6, 1999 industrial injury with conditions of left cervical strain, left trapezius
strain and low back strain, the claimant’s accepted medical condition of
aggravation of lumbar strain for the December 16, 1999 injury was temporary.
She has recovered from the December 16, 1999 temporary aggravation and was
then left the way she was prior to December 16, 1999 secondary to the original
motor vehicle accident of May 6, 1999.
The temporary aggravation of
December 16, 1999 most probably completely dissipated as of April 16, 2000.
My opinion [is that] the temporary aggravation of December 16, 1999 was
discussed fully in my original report of June 12, 2002 and has not changed.”
Dr. Auerbach attributed appellant’s work restrictions to her May 6, 1999 motor vehicle accident
as described in the previous work restriction evaluated dated July 8, 2002. He stated:
“Given new medical evidence that there was an accepted claim with a date of
injury May 6, 1999, the [appellant] continues to suffer residuals only of the
May 6, 1999 motor vehicle accident. [She] has recovered from the temporary
aggravation of the December 16, 1999 injury completely. [Appellant] continues
to have residuals by direct cause only of the May 6, 1999 injury. She does not
continue to have residuals by direct cause or aggravation as a result of the
December 16, 1999 injury as she has completely recovered from it.
“The medical conditions of left cervical strain and left trapezius strain have
resolved, but the low back strain and aggravation of lumbar spine continue as
noted with impairment and disability documented in my June 12, 2002 report and
documented in my July 8, 2002 OWCP-5c form.
“[Appellant] has no impairment and disability to the neck or left trapezius.”
In a report dated September 25, 2003, Dr. Wren discussed appellant’s complaints of
increased pain along the left side of her neck, left shoulder and lower back extending through the
right leg and foot. He found that she was temporarily totally disabled due to her increase in pain.

4

On October 24, 2003 the Office notified appellant that it proposed to terminate her
compensation in file number 132007926 on the grounds that she had no residuals of her
December 16, 1999 employment injury. The Office indicated that benefits for file number
131189616 were “not affected by this proposed decision.”
In a November 24, 2003 response, appellant argued that Dr. Sherman’s report was
insufficient to create a conflict with Dr. Wren’s report as he did not have information regarding
the May 6, 1999 work injury at the time he rendered his opinion.3
By decision dated January 30, 2004, the Office finalized its termination of appellant’s
entitlement to compensation and authorization for medical benefits on the grounds that she had
no further residuals of her December 16, 1999 employment injury. Appellant requested a
hearing, which was held on November 30, 2004. She noted that she had retired from the
employing establishment on March 1, 2004. Appellant argued that Dr. Auerbach did not explain
why her December 1999 employment injury resolved. She also asserted that Dr. Sherman’s
opinion was insufficient to create a conflict as the Office did not provide him information about
her May 1999 work injury. Appellant indicated that she sustained a subsequent injury to her
back in October 2003. She described difficulties obtaining payment for medical expenses. By
decision dated March 4, 2005, the Office hearing representative affirmed the January 30, 2004
decision.
On September 3, 2004 appellant requested reconsideration. She submitted a report dated
February 8, 2005 from Dr. Wren who discussed appellant’s employment injuries and expressed
his disagreement with Dr. Sherman’s opinion. Dr. Wren opined that she “sustained a permanent
aggravation of her preexisting osteoarthritis of her lower back. Appellant also has lumbar disc
protrusion, L5-S1 and disc bulge L4-5 as a result of her job injury of May 6 and December 16,
1999 in particular.
In a decision dated November 7, 2005, the Office denied modification of the hearing
representative’s finding that appellant had no further residuals of her December 16, 1999
employment injury. The Office modified the hearing representative’s March 4, 2005 decision to
show that appellant had continuing residuals of her May 6, 1999 employment injury of lumbar
strain. The Office further indicated that the May 6, 1999 claim should be expanded to include an
aggravation of preexisting lumbar osteoarthritis and degenerative disc disease.
On January 12, 2006 appellant requested reconsideration. She argued that claim file
number 131189616 should also include her left shoulder, neck and back conditions.
By decision dated February 9, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was insufficient to warrant review of the November 7,
2005 decision. The Office noted that any argument about claim file number 131189616 should
be directed to that file number.

3

On November 20, 2003 appellant appealed to the Board. The Board dismissed the appeal as there was no
adverse decision over which it had jurisdiction. Order Dismissing Appeal, Docket No. 04-388 (issued
December 31, 2003).

5

LEGAL PRECEDENT -- ISSUES 1 & 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5 Additionally, the right to medical benefits for an accepted condition is not limited
to the period of entitlement for disability compensation.6 To terminate authorization for medical
treatment, the Office must establish that appellant no longer has residuals of an employmentrelated condition which require further medical treatment.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.10
ANALYSIS -- ISSUES 1 & 2
The Office accepted that appellant sustained a reinjury to her lumbar spine due to a
December 16, 1999 employment injury, which occurred when she stepped on a broken tile and
her foot went through the floor. Appellant worked in a limited-duty capacity at the time of her
December 16, 1999 employment injury due to neck, left shoulder and lumbar strain resulting
from a May 6, 1999 employment-related motor vehicle accident.
Dr. Sherman, who provided a second opinion evaluation on February 19, 2002, diagnosed
resolved lumbosacral strain due to appellant’s December 16, 1999 employment injury and
nonemployment-related osteoarthritis. He opined that appellant had no further disability due to
4

Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

6

her December 16, 1999 employment injury but had continuing disability from her motor vehicle
accident. On March 14, 2002 Dr. Wren diagnosed a disc protrusion at L5-S1 with neural
foraminal stenosis, osteophyte formation and facet joint arthritis due to appellant’s May and
December 1999 employment injuries. The Office determined that a conflict existed between
Dr. Sherman and Dr. Wren regarding whether appellant had continuing residuals of her
December 16, 1999 employment injury. The Office referred her to Dr. Auerbach for an impartial
medical examination.
In a report dated June 12, 2002, Dr. Auerbach reviewed the medical evidence and the
results of objective studies. He noted that a December 2001 MRI scan study showed
degenerative disease and disc bulges at L4-5 and L5-S1. Dr. Auerbach opined that appellant had
no limitations from the “December 16, 1999 temporary aggravation of her preexisting condition
that aggravated her lumbar spine.” He attributed her work limitations to her “preexisting
condition, osteoarthritis of the lumbar spine, secondary to the aggravation of osteoarthritis,
lumbar spine, in the motor vehicle accident at work of May 1999.”
The Office terminated appellant’s compensation based on Dr. Auerbach’s June 12, 2002
report. A hearing representative, however, instructed the Office to request clarification from
Dr. Auerbach regarding whether appellant had continuing residuals from either her May or
December 1999 work injury. On September 8, 2003 Dr. Auerbach indicated that based on his
review of case records for both injuries appellant had “a disc injury due to the December 16,
1999 industrial injury.”11 He further opined that the aggravation of appellant’s lumbar strain due
to the December 16, 1999 injury had resolved. Dr. Auerbach also found that appellant’s left
cervical strain and left trapezius strain had resolved but that she had continuing low back strain
and an aggravation of the lumbar spine due to her May 6, 1999 employment injury.
In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.12 The Board finds, however, that
Dr. Auerbach’s opinion that appellant’s aggravation of her lumbar condition due to the
December 16, 1999 employment injury had resolved is not sufficiently well reasoned to be
entitled to special weight. He asserted that appellant had no further aggravation of her back
condition due to her December 16, 1999 employment injury but cited no clinical findings to
substantiate his assertion. Dr. Auerbach attributed her continuing work restrictions to her prior
May 1999 employment injury but provided no analysis to show how he reached such a
determination. He did not explain why he believed that appellant had disability due solely to her
May 1999 work injury or why he believed that her December 16, 1999 aggravation of her back
condition had resolved. While Dr. Auerbach made statements regarding disability and causal
relationship that were clear and unequivocal, he failed to offer medical reasoning in support of
his conclusions.13 The certainty with which he expressed his opinion cannot overcome the lack
11

Dr. Auerbach’s finding that appellant had a disc injury due to her December 16, 1999 work injury appears from
the context of his report to be a typographical error.
12

See David W. Pickett, supra note 10.

13

See Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

7

of medical rationale.14 As Dr. Auerbach did not sufficiently explain why the December 16, 1999
employment injury no longer aggravated appellant’s lumbar condition, his opinion is insufficient
to constitute the special weight of the medical evidence and the record contains an unresolved
conflict in medical opinion. The Board consequently finds that the Office has not met its burden
of proof to terminate appellant’s compensation and medical benefits for her December 16, 1999
employment injury.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation and medical benefits effective January 30, 2004 on the grounds that she has no
further disability or condition due to her December 16, 1999 employment injury.15
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 9, 2006 and November 7, 2005 are reversed.
Issued: May 1, 2007
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

14

See Willa M. Frazier, 55 ECAB 379 (2004).

15

In view of the Board’s disposition of the merits, the issues of whether appellant has established continuing
disability and whether the Office properly denied appellant’s request for reconsideration are moot.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Broken Arrow, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1599
Issued: January 11, 2017

Case Submitted on the Record

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

JURISDICTION
On August 3, 2016 appellant, through counsel, filed a timely appeal from a June 30, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits on September 21, 2012 because the
1

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

5 U.S.C. § 8101 et seq.

accepted conditions had resolved with no residuals; and (2) whether appellant met his burden of
proof to establish that he had continuing employment-related disability after September 21, 2012
due to the accepted conditions.
On appeal counsel asserts that OWCP’s June 30, 2016 decision is contrary to fact and
law.
FACTUAL HISTORY
This case has previously been before the Board. In a February 22, 2012 decision, the
Board found that appellant failed to establish total disability for the period May 20 to October 1,
2010 due to a May 20, 2010 employment injury, adjudicated by OWCP under File No.
xxxxxx969.3 The facts outlined in the prior Board decision are incorporated herein by
reference.4
During the pendency of appellant’s appeal before the Board, on February 9, 2012 OWCP
combined File No. xxxxxx969 and File No. xxxxxx742, with the latter serving as the master
file.5
On February 10, 2012 OWCP referred appellant to Dr. Dennis E. Foster, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine whether appellant’s
accepted conditions had resolved and whether he could return to his date-of-injury job. In a
March 1, 2012 report, Dr. Foster noted his review of the statement of accepted facts and medical
record. He described appellant’s complaints of neck, back, and left shoulder pain, and physical
examination findings. Dr. Foster indicated that, in spite of appellant’s subjective complaints,
there were very few objective findings that would substantiate an underlying problem. He
advised that continued treatment, including therapy, was not indicated. In answer to specific
OWCP questions, Dr. Foster repeated that there was no objective evidence that the accepted
conditions were currently active and disabling, that no aggravation had occurred, and that
appellant could return to his date-of-injury position as a distribution clerk. In an attached work

3

Docket No. 11-1694 (issued July 27, 2012); petition for recon. denied July 27, 2012.

4

On May 20, 2010 appellant, a distribution clerk, injured his back and neck when G.H., the postmaster, placed a
large amount of mail flats onto his arm and pushed down on it. He stopped work that day and did not return.
OWCP accepted sprains to the lumbar region of the back, neck, shoulder, and rotator cuff of the left upper arm.
Appellant filed claims for disability compensation for the period May 20 to October 1, 2010. In decisions dated
November 24, 2010 and June 3, 2011, OWCP denied his claim for disability compensation for the period May 20 to
October 1, 2010, finding that the medical evidence of record was insufficient to establish disability from work due to
the May 20, 2010 work injury.
5

Under File No. xxxxxx742, OWCP had accepted neck and thoracic sprains from a June 19, 1998 injury. On
April 7, 2015 it denied appellant’s claim for a schedule award. In a June 17, 2015 decision, OWCP denied his claim
for a May 20, 2010 recurrence of disability, and, in a March 17, 2016 merit decision, it denied modification of the
June 17, 2015 decision. Appellant did not appeal any of these decisions. He also has a third claim, File No.
xxxxxx366, for a June 19, 1998 employment injury. A note appended to a development letter from OWCP to
appellant dated December 15, 2009 indicated that he was still working and was not on light duty. By decision dated
February 16, 2010, OWCP denied his claim from a recurrence of disability under this file number.

2

capacity evaluation, he advised that appellant could work in his usual job with no restrictions,
and that maximum medical improvement (MMI) had been reached.
On April 27, 2012 appellant, through counsel, requested reconsideration with respect to
OWCP’s denial of disability compensation. The employing establishment reported that appellant
stopped work in May 2010 and had been removed from employment for cause for failure to
report for work.
Dr. Don Barney, an attending osteopath, who began treating appellant in 2010, submitted
a work capacity evaluation (Form 5c) on March 14, 2012. He advised that appellant could not
perform his usual job and had a restriction of one hour reaching above the shoulder until the fear
factor was resolved. Dr. Barney noted that appellant’s injury was not the cause of his disability,
and that he could work as many hours as tolerated and could work without limits. On May 14,
2012 he reported that appellant’s left shoulder and wrist had been a problem for some time and
that his current problem was stress in having to work for his former boss, G.H. Dr. Barney
described appellant’s job duties and noted that he had an altercation when G.H. handed him a
bundle of mail and left work, and the stress of dealing with G.H. caused him to keep from
returning to work. He advised that appellant’s left upper extremity had some restricted range of
motion and that he also had lumbar spasms. Dr. Barney diagnosed severe stress syndrome,
derangement of the left shoulder, left shoulder rotator cuff tear, and lumbar pain, acute and
chronic. He recommended that appellant work at a different postal location.
Appellant also submitted an August 16, 2010 report from Judith K. Adams, Ph.D., a
clinical psychologist, who described counselling sessions with him. Dr. Adams advised that he
was very apprehensive and anxious about any thought of returning to work due to problems with
his supervisor. She diagnosed major depressive disorder, recurrent, moderate, and indicated that
appellant had substantial occupational impairment.
Dr. Deborah A. Kucharski, a chiropractor, performed a functional capacity evaluation on
July 2, 2012. She indicated that appellant could do more physically than he demonstrated during
testing, noting limitations in testing caused by reports of pain. Dr. Kucharski reported that he
was unwilling to continue in occupational therapy, maintaining that it caused too much pain.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Foster and Dr. Barney regarding appellant’s ability to work, and in July 2012
referred appellant to Dr. Sami Framjee, a Board-certified orthopedic surgeon, for an impartial
evaluation.6 In an August 8, 2012 report, Dr. Framjee noted his review of the medical record and
that appellant had not worked since May 20, 2010. He described appellant’s medical and work
history, and current symptoms of neck, upper and lower back, and left shoulder pain that were
vague and nonspecific in nature. Dr. Framjee noted that appellant appeared depressed and
advised that he complained of pain on superficial touch on examination of the cervical and
thoracolumbar spine. Sensory examination revealed diffuse, nonorganic hypesthesia in the left
arm and left leg. Straight-leg raising was negative bilaterally. Left shoulder examination
revealed no swelling, deformity, atrophy, or tenderness to palpation. Range of motion was
limited by appellant, and there was no clinical evidence of rotator cuff tear.
6

Dr. Framjee is also Board-certified in internal medicine and cardiovascular disease.

3

Dr. Framjee advised that he saw no anatomical injury to appellant’s cervical spine,
thoracic spine, lumbar spine, or left shoulder secondary to the May 20, 2010 work incident. He
opined that appellant had reached MMI. In answer to specific questions, Dr. Framjee indicated
that appellant had no clinical evidence of active strain/sprain of the cervical spine, thoracic spine,
lumbar spine, or left shoulder and no evidence of aggravation. He opined that appellant could
return to his date-of-injury job as a distribution clerk, and no further medical treatment was
indicated secondary to the May 20, 2010 injury. On an August 8, 2012 work capacity
evaluation, Dr. Framjee repeated that appellant could return to normal work.
In a merit decision dated August 21, 2012, OWCP denied modification of its prior
decisions regarding appellant’s entitlement to disability compensation for the period May 20 to
October 1, 2010.
On August 21, 2012 OWCP proposed to terminate appellant’s entitlement to wage-loss
compensation and medical benefits. It found that Dr. Framjee’s opinion constituted the weight
of the medical evidence.
In reports dated August 13 and September 5, 2012, Dr. Barney described appellant’s
condition. He noted his review of Dr. Framjee’s report, opining that it did not appear that
Dr. Framjee used the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides hereinafter),7 in assessing appellant’s
condition, and disagreed with his assessment and that of Dr. Foster. Dr. Barney concluded that
appellant’s May 2010 injury related back to his June 1998 injury.8
By decision dated September 21, 2012, OWCP finalized the termination of appellant’s
entitlement to wage-loss compensation and medical benefits. It found that the special weight of
the medical evidence rested with the referee opinion of Dr. Framjee.
Appellant, through counsel, timely requested a hearing. He submitted treatment notes
from Dr. Barney dated September 27 and October 31, 2012, in which the physician noted
findings of pain and discomfort in the shoulder and lumbosacral area. Dr. Barney reiterated his
diagnoses. In a letter dated October 31, 2012 to the Oklahoma Department of Social Security, he
related that appellant had been diagnosed with severe bilateral carpal tunnel syndrome caused by
his 18-year history as a mail sorter. Dr. Barney opined that appellant should be granted disability
retirement.
At the hearing held on December 4, 2012 appellant testified that he had a 1998 claim
where a mail case fell on his shoulder and back, a 2009 claim where he was injured picking up
pallets, and a 2010 claim where the postmaster shoved a foot of flats into his arms, pushing with
his body weight. He stated that since the 1998 injury he had continuing neck and shoulder pain,
had worked modified duty since that time, and had only worked two to three days a week after
the 2009 injury. Appellant also noted that he had filed an Equal Employment Opportunity
(EEO) claim against the postmaster and felt that the 2010 incident was in retaliation. He
7

A.M.A., Guides (6th ed. 2009).

8

Supra note 5.

4

indicated that he had felt anxiety since the 1998 injury, but had never filed a claim for stress, and
that due to the severe pain he had experienced since May 20, 2010, he had not returned to work.
Counsel asserted that all three claims should be combined, and that Dr. Framjee should have
commented on all injuries.
By decision dated January 29, 2013, an OWCP hearing representative found that the
special weight of the medical evidence rested with the opinion of Dr. Framjee, the referee
physician, and affirmed the September 21, 2012 termination decision.
In letters received by OWCP on February 2 and 13, 2013, appellant requested
reconsideration. He asserted that both Dr. Foster and Dr. Framjee only saw him for five minutes
each and that Dr. Barney’s opinion should carry the weight of the evidence.
In a merit decision dated July 15, 2013, OWCP denied modification of its prior decisions.
It found that the medical evidence presented was insufficient to alter the prior decisions.
Appellant again requested reconsideration on July 22, 2013. He submitted evidence
previously of record, including a duplicate of Dr. Barney’s October 31, 2012 letter to the
Oklahoma Department of Social Security. Appellant asserted that the federal workers’
compensation system was corrupt.
In a merit decision dated August 26, 2013, OWCP denied modification of its prior
decision.
On September 10, 2013 appellant again requested reconsideration. He again forwarded
Dr. Barney’s October 31, 2012 letter. Appellant discussed the 1998 and 2009 injuries, and
asserted that he had anxiety disorders dating back to 1998. He reported that he had retired on
disability.9
In a merit decision dated December 12, 2013, OWCP denied modification of its prior
decision.
Appellant, through counsel, again requested reconsideration on December 11, 2014. In
reports dated January 28 through November 26, 2014, Dr. Barney noted that appellant reported
that he was injured while working at the employing establishment. He described appellant’s
complaints and findings. Dr. Barney diagnosed sprain of the lumbar region, sprain of the neck,
left rotator cuff sprain, and anxiety syndrome. In May 22, 2014 correspondence, he observed
that neither Dr. Foster nor Dr. Framjee had applied the A.M.A., Guides to his analysis.
Dr. Barney requested that appellant be allowed to receive medications for his discomfort due to
the accepted conditions and should receive disability retirement. He noted that appellant had a
severe anxiety disorder that rendered him unable to return to work with his previous postmaster,
G.H., and requested help for appellant to obtain a schedule award.10
9

On August 4, 2013 appellant filed an occupational disease claim (Form CA-2) for carpal tunnel syndrome. The
record before the Board does not indicate that OWCP has adjudicated this claim.
10

Supra note 5. As noted, by decision dated April 7, 2015, OWCP denied appellant’s claim for a schedule award.
Appellant did not file an appeal with the Board from this decision.

5

In a merit decision dated March 11, 2015, OWCP discussed the evidence submitted on
reconsideration and denied modification of the prior decisions.
Appellant again requested reconsideration on August 7, 2015.11
In monthly reports dated January 26, 2015 to February 26, 2016, Dr. Barney reiterated his
findings and conclusions. In correspondence dated June 24 and July 31, 2016, he opined that
appellant’s problems were due to his May 20, 2010 employment injury, and that he needed
continued treatment and medical care.
In a merit decision dated June 30, 2016, OWCP again found that the special weight of the
medical evidence rested with the opinion of Dr. Framjee, the impartial medical specialist, and
denied modification of its prior decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.12 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 The implementing regulations
provide that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.15 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.16
11

Appellant also filed a recurrence claim on November 3, 2015 (Form CA-2a) indicating that the claimed
recurrence began on May 20, 2010, and was due to back, neck, shoulder pain, depression, and anxiety. He requested
approval of medical visits and medications. On April 5, 2015 OWCP noted that the recurrence claim would be
deleted and included with appellant’s request for reconsideration.
12

Jaja K. Asaramo, 55 ECAB 200 (2004).

13

Id.

14

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

15

20 C.F.R. § 10.321.

16

V.G., 59 ECAB 635 (2008).

6

ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 21, 2012. The accepted conditions
under the combined claim are sprains to the lumbar region of the back, neck, shoulder, and
rotator cuff of the left upper arm. OWCP determined that a conflict in medical evidence had
been created between the opinions of Dr. Barney, an attending osteopath, and Dr. Foster, an
OWCP referral physician regarding appellant’s work capabilities and whether he had continuing
employment-related disability. It then properly referred him to Dr. Framjee, also Board-certified
in orthopedic surgery, for an impartial evaluation to resolve the conflict.
In an August 8, 2012 report, Dr. Framjee noted his review of the medical record and that
appellant had not worked since May 20, 2010. He described appellant’s medical and work
history, and current symptoms of neck, upper and lower back, and left shoulder pain that were
vague and nonspecific in nature. Dr. Framjee thoroughly described examination findings and
advised that appellant had no clinical evidence of active strain/sprain of the cervical spine,
thoracic spine, lumbar spine, or left shoulder, and no evidence of aggravation. He opined that
appellant could return to his date-of-injury job as a distribution clerk, and no further medical
treatment was indicated. On an August 8, 2012 work capacity evaluation, Dr. Framjee repeated
that appellant could return to normal work.
The Board finds that Dr. Framjee provided a comprehensive, well-rationalized opinion in
which he clearly advised that any residuals of appellant’s accepted conditions had resolved and
that he could return to his normal work. Dr. Framjee’s opinion is therefore entitled to the special
weight accorded an impartial examiner and constitutes the weight of the medical evidence.17
The medical evidence appellant submitted prior to the termination was insufficient to
overcome the weight accorded Dr. Framjee, as an impartial medical specialist. In reports dated
August 13 and September 5, 2012, Dr. Barney described appellant’s condition and disagreed
with his assessment and that of Dr. Foster. He also indicated that the A.M.A., Guides should be
used in assessing disability. The Board has long held that reports from a physician who was on
one side of a medical conflict are generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner, or to create a new conflict.18 Dr. Barney had been on
one side of the conflict resolved by Dr. Framjee. Moreover, the A.M.A., Guides is not utilized
under FECA to assess disability with respect to wage loss, but only to assess permanent partial
impairment for schedule award purposes.19 Disability is not synonymous with physical
impairment, which may or may not result in an incapacity to earn wages.20
The Board therefore concludes that Dr. Framjee’s opinion that appellant had recovered
from the accepted conditions is entitled to the special weight accorded an impartial medical
17

See Sharyn D. Bannick, 54 ECAB 537 (2003).

18

I.J., 59 ECAB 408 (2008).

19

See 20 C.F.R. § 10.404; 5 U.S.C. § 8107.

20

Merle J. Marceau, 53 ECAB 197 (2001).

7

examiner,21 and the additional medical evidence submitted is insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether appellant had residuals of his
accepted conditions. OWCP therefore properly terminated appellant’s entitlement to wage-loss
compensation and medical benefits on September 21, 2012.22
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s entitlement to wage-loss
compensation and medical benefits on September 21, 2012, the burden shifted to him to establish
that he had any continuing disability causally related to the accepted conditions.23 Causal
relationship is a medical issue. The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.24
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence, following the
September 21, 2012 termination, to establish that he continued to be disabled due to the accepted
conditions.
Following the termination, appellant submitted reports from Dr. Barney dated
September 27, 2012 to February 26, 2016. Dr. Barney was consistent in his opinion that
appellant continued to have residuals of employment injuries. However, as noted, he had been
on one side of the conflict in medical evidence. Moreover, a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship, which is unsupported by medical rationale.25 Dr. Barney merely reiterated that
appellant’s problems were due to employment injuries, and that he needed continued treatment
and medical care.
Dr. Barney also noted that appellant had severe anxiety regarding returning to work at the
employing establishment. The record, however, does not indicate that appellant has filed a claim
for an employment-related emotional condition.26

21

See supra note 17.

22

Manuel Gill, 52 ECAB 282 (2001).

23

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

24

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

25

T.M., Docket No. 08-975 (issued February 6, 2009).

26

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury).

8

As to appellant’s assertion at the hearing that he had worked modified duty since a 1998
employment injury, the record before the Board includes a statement appended to a letter
addressed to him indicating that he was not on light duty in 2009 when he filed a recurrence of
disability under that claim.27
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and medical benefits affect the September 21, 2012, and that
appellant failed to meet his burden of proof to establish continuing employment-related disability
after that date causally related to the May 20, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

27

Supra note 5.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE
VEHICLE MAINTENANCE FACILITY,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1206
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 4, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish medical conditions
causally related to the accepted July 9, 2019 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 10, 2019 appellant, then a 56-year-old body repairman, filed a traumatic injury
claim (Form CA-1) alleging that on July 9, 2019 he sustained a pinched nerve in his left shoulder
when he lifted a Long Life Vehicle (LLV) door while in the performance of duty. He stopped
work on that date and returned to modified duty on July 10, 2019.
In a July 12, 2019 duty status form report (Form CA-17), Dr. Cindy Catania, an osteopath
Board-certified in family medicine, noted a July 9, 2019 date of injury. She indicated clinical
findings of left shoulder impingement syndrome and left upper back muscle spasm.
In an October 17, 2019 development letter, OWCP informed appellant that it had reopened
his claim for reconsideration of the merits because he had filed a notice of recurrence (Form
CA-2a),4 and that his claim would now be formally adjudicated. It advised him of the deficiencies
of his claim and requested additional factual and medical evidence. OWCP afforded appellant 30
days to provide the necessary factual information and medical evidence.
In an October 23, 2019 note, Dr. Cameron Best, a Board-certified orthopedic surgeon,
advised that appellant was unable to work until his electromyography (EMG) study.
By decision dated November 27, 2019, OWCP denied appellant’s claim. It accepted that
the July 9, 2019 incident occurred as alleged and that left shoulder and cervical conditions had
been diagnosed, however, it denied his claim finding that he had failed to establish that his medical
conditions were causally related to the accepted employment incident.
Appellant subsequently submitted diagnostic testing reports. A July 12, 2019 left shoulder
magnetic resonance imaging (MRI) scan revealed focal cortical irregularity of the acromion. A
July 17, 2019 left shoulder x-ray examination report showed normal shoulder alignment and mild
acromioclavicular degenerative changes. An October 17, 2019 cervical spine MRI scan
demonstrated severe left foraminal stenosis at the C4-5 and C5-6 levels. An October 17, 2019 left
shoulder MRI scan revealed marked supraspinatus and infraspinatus tendinosis, multifoca l labral
tearing, moderate acromioclavicular (AC) joint degenerative change with ganglion cyst formation,
and mild teres minor atrophy.
3

Docket No. 20-1486 (issued March 16, 2021).

4

On October 10, 2019 appellant filed a recurrence claim for disability from work commencing October 9, 2019
due to his July 9, 2019 employment injury.

2

In reports dated July 9 and 12, 2019, Dr. Catania noted that appellant was reevaluated for
his injuries of left shoulder strain and left thoracic muscle spasm since July 8, 2019. She provided
examination findings and noted diagnosis of left shoulder impingement syndrome, left shoulder
muscle spasm, left shoulder acute pain, left shoulder strain, paresthesia and pain of the left
extremity, and peripheral fatigue.
In a July 17, 2019 report, Dr. Jonathan E. Campbell, a Board-certified orthopedic surgeon,
recounted appellant’s complaints of left shoulder pain and numbness. He conducted an
examination and diagnosed left forearm and hand numbness with possible ulnar neuritis.
In reports dated October 14 and 21, 2019, Dr. David K. DeDianous, Board-certified in
physical medicine and rehabilitation, recounted appellant’s symptoms of middle back and left
shoulder pain. He provided examination findings and diagnosed shoulder pain, left arm
paresthesia, tendinitis, and cervical pain and radiculopathy.
In a November 11, 2019 letter, Dr. R.J. Hammett, a chiropractor, indicated that he was
treating appellant for injuries sustained at work. Appellant submitted additional chiropractic
treatment notes dated October 29 through November 19, 2019.
On February 18, 2020 appellant requested reconsideration.
In a December 3, 2019 letter, Dr. Hammett discussed appellant’s examination findings and
noted that a cervical spine x-ray evaluation revealed loss of cervical lordosis, degenerative disc
spaces at C5-6 with osteophytic spurring, and flexion malposition at C5 and C6. He diagnosed
vertebral subluxation complexes of C1 and C5 with a loss of cervical lordosis, and cervical
degenerative changes. In an undated addendum letter, Dr. Hammett noted that the injury was
initially caused on July 9, 2019 when lifting an LLV door onto sawhorses and flipping them over.
By decision dated May 6, 2020, OWCP denied modification of November 27, 2019
decision.
Appellant, through counsel, appealed to the Board. By decision dated March 16, 2021, the
Board affirmed OWCP’s May 6, 2020 decision.5
On April 13, 2021 appellant, through counsel, requested reconsideration.6
In an undated addendum letter, Dr. Hammett indicated that he was clarifying his previous
October 20 and December 3, 2019 reports and letters. He noted that appellant first presented in
his office complaining of mid-back and neck pain radiating into his hands with numbness and
tingling in the radial nerve dermatome. Dr. Hammett opined that the injury was initially caused
5

Supra note 3.

6

Although counsel claimed to be filing a request for reconsideration from the Board’s March 16, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 16, 2021 Board decision was the last merit decision, the May 6, 2020 OWCP decision
is the appropriate subject of possible modification by OWCP.

3

on July 9, 2019 when appellant lifted an LLV door at work. He recounted that appellant had
informed him that this particular job was heavy and awkward because of the weight and angles
that the doors have to be flipped.
By decision dated June 22, 2021, OWCP denied modification of the May 6, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 8 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. 9 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. 10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established. 11
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit evidence, in the
form of probative medical evidence, to establish that the employment incident caused a personal
injury.12
To establish causal relationship between the condition, as well as any attendan t disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 13 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported

7

Supra note 2.

8

F.H., Docket No. 18-0869 (issued January 29, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); 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).
11

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

12

T.H., Docket No. 19-0599 (issued January 28, 2020); B.M., Docket No. 17-0796 (issued July 5, 2018); David
Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).
13

S.S., Docket No. 19-0688 (issued January 24, 2020); S.A., Docket No. 18-0399 (issued October 16, 2018); see
also Robert G. Morris, 48 ECAB 238 (1996).

4

by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
Appellant submitted an addendum letter to the prior reports of Dr. Hammett, a chiropractor,
who indicated that he was treating appellant for complaints of mid-back and neck pain radiating
into his hands with numbness and tingling in the radial nerve dermatome. He opined that
appellant’s injury was initially caused on July 9, 2019 when he lifted an LLV door at work. Under
FECA, the term physician includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.15 The Board finds that Dr. Hammett did treat appellant’s
subluxation as demonstrated by x-ray to exist and has treated it with manual manipulation.
Therefore, Dr. Hammet is considered a physician under FECA. 16 However, he has not provided a
rationalized medical opinion establishing causal relationship between the diagnosed subluxation
and the accepted July 9, 2019 employment incident. 17 Therefore, appellant has not met his burden
of proof.
On appeal, counsel argues that Dr. Hammett provided clarification of his opinion on causal
relationship and diagnosed subluxation based upon an x-ray scan. As explained above, however,
Dr. Hammett is not considered a physician as defined under FECA.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s medical conditions and the accepted July 9, 2019 employment incident, he has not met
his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

14

C.F., Docket No. 18-0791 (issued February 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
15

Section 8101(2) of FECA provides that the term physician includes chiropractors only if the treatment consists
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
See J.D., Docket No. 19-1953 (issued January 11, 2021); T.T., Docket No. 18-0838 (issued September 19, 2019);
Thomas W. Stevens, 50 ECAB 288 (1999).
16

See id. The Board notes that it did not properly characterize Dr. Hammett as a physician on prior appeal; however,
that was harmless error as he has not provided a rationalized medical opinion establishing causal relationship.
17

See supra note 13.

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1828
Issued: August 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from the September 25, 2006 merit
decision of the Office of Workers’ Compensation Programs, which terminated her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case. The Board also has jurisdiction to review the hearing representative’s March 30, 2007
merit decision affirming the termination.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits for
right wrist tenosynovitis effective September 25, 2006.
FACTUAL HISTORY
On February 22, 2005 appellant, then a 57-year-old security screener, filed a claim
alleging that she sustained a traumatic right wrist injury that day while lifting a piece of luggage

off a table just enough to slide it onto the belt of an x-ray machine.1 The Office accepted her
claim for right wrist tenosynovitis and paid compensation for temporary total disability.
A conflict in medical opinion arose between appellant’s physicians, who diagnosed right
wrist de Quervain’s tenosynovitis, and an Office second opinion physician, who reported no
objective findings to support appellant’s subjective complaints of pain. To resolve the conflict,
the Office referred appellant, together with the case record and a statement of accepted facts, to
Dr. Donald D. Hubbard, a Board-certified orthopedic surgeon, for an impartial medical
evaluation.
On February 10, 2006 Dr. Hubbard reviewed the nature of the conflict he was to resolve
and the statement of accepted facts. He reviewed appellant’s medical record, including the
reports from her attending physicians. Dr. Hubbard related her chief complaints and symptoms
and her history of present illness. He then described his findings on physical examination.
Dr. Hubbard diagnosed “by history and original case file review” right wrist pain secondary to
strain and tenosynovitis evolving into right thumb pain plus other symptoms and findings
consistent with right de Quervain’s tenosynovitis. But on physical examination he reported no
objective evidence of tenosynovitis. Dr. Hubbard reported no objective evidence of brachial
plexopathy, cervical radiculopathy, peripheral entrapment neuropathy, specific peripheral
neuralgia, reflex sympathetic dystrophy/neurovascular instability, complex regional pain
syndrome I and II or thoracic outlet syndrome.
Dr. Hubbard determined, based on his physical examination, that appellant’s right wrist
tenosynovitis had resolved:
“By history, she continues to suffer residuals of pain and loss of function
secondary to pain of the right wrist and thumb related to the February 22, 2005
accident. Clearly there is a disconnect between the objective findings and the
subjective complaints. I find no evidence today of reflex sympathetic dystrophy
(RSD); causalgia; or stenosing tenosynovitis of the first dorsal compartment (or
de Quervain’s disease). Right wrist and thumb pain of undocumented etiology
continues to be the major problem related to her work accident of
February 22, 2005.”
Dr. Hubbard continued:
“No underlying disease entity has been documented despite appropriate and
necessary repeat clinical examinations and diagnostic tests including blood
evaluation, radiographic imaging of the right wrist and electrodiagnostic testing of

1

In a later claim, appellant alleged that she sustained a left hand and wrist injury as a result of her federal
employment. The Office denied that claim. OWCP File No. 142043397. Appellant filed a separate appeal from a
separate Office decision in that case, which the Board will review in a separate decision and order under Docket
No. 07-1827.

2

the right upper extremity. Preexisting same and similar condition has also been
denied emphatically by [appellant].”2
In a decision dated September 25, 2006, following appropriate notice, the Office
terminated appellant’s compensation for the accepted condition of right wrist tenosynovitis. It
found that the weight of the medical opinion evidence rested with the impartial medical
specialist, Dr. Hubbard, and established that the accepted condition had resolved.
Appellant requested an oral hearing before an Office hearing representative, which was
held on January 17, 2007. In a decision dated March 30, 2007, the hearing representative
affirmed the termination of her compensation. The hearing representative found that the weight
of the medical evidence, represented by the opinion of the impartial medical specialist,
established that the accepted condition of right wrist tenosynovitis had resolved.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.4
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.5
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.6 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.7

2

In supplemental reports dated May 29 and June 21, 2006, Dr. Hubbard stated that neither a nerve block nor
spica cast was appropriate based on objective findings but could aid the treating physician in determining the source
of pain and other associated causation and would perhaps avoid unnecessary surgery. He also stated that
notwithstanding December 29, 2005 clinical findings supporting the probable existence of de Quervain’s disease, his
findings on examination remained the same.
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

3

ANALYSIS
The Office accepted that appellant sustained an injury in the performance of duty on
February 22, 2005. It accepted her claim for the condition of right wrist tenosynovitis and paid
compensation benefits on that basis. To resolve the conflict that arose between appellant’s
physicians, who continued to diagnose de Quervain’s tenosynovitis, and the Office second
opinion physician, who reported no objective findings to support appellant’s subjective
complaints of pain, the Office properly referred appellant to an impartial medical specialist.
The Office provided Dr. Hubbard, a Board-certified orthopedic surgeon, with appellant’s
medical record and a statement of accepted facts so he could base his opinion on a proper
medical and factual history. Dr. Hubbard reviewed the entire medical record, including the
reports and findings of appellant’s physicians. He reviewed appellant’s current complaints and
described his findings on examination. Although appellant reported subjective complaints of
pain, on physical examination Dr. Hubbard could find no objective evidence of tenosynovitis.
Dr. Hubbard found no evidence of de Quervain’s disease or causalgia. He found no objective
evidence of other possible physical explanations, including brachial plexopathy, cervical
radiculopathy, peripheral entrapment neuropathy, specific peripheral neuralgia, reflex
sympathetic dystrophy/neurovascular instability, complex regional pain syndrome I and II or
thoracic outlet syndrome. Because Dr. Hubbard could document no underlying disease entity to
account for appellant’s subjective complaints, because his objective findings on physical
examination were not diagnostic of right wrist tenosynovitis, he concluded that the accepted
condition had resolved. In addition to a negative physical examination -- including a negative
Finkelstein’s test, a test that is diagnostic for de Quervain’s tenosynovitis -- he noted that a
recent injection for de Quervain’s tenosynovitis did not help, not even temporarily. This is
persuasive evidence that supports Dr. Hubbard’s conclusion that appellant’s presentation could
not be explained on the basis of tenosynovitis.
The Board finds that the opinion of the impartial medical specialist is based on a proper
history and is medically well reasoned. That opinion must be accorded special weight in
resolving whether appellant has right wrist tenosynovitis. Because the weight of the medical
opinion evidence establishes that the accepted condition has resolved, the Board finds that the
Office has met its burden of proof to terminate compensation benefits for that condition. The
Board will affirm the Office’s September 25, 2006 and March 30, 2007 decisions.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits for
right wrist tenosynovitis effective September 25, 2006.8

8

The Office’s termination of compensation benefits relates only to the accepted condition of right wrist
tenosynovitis and does not prevent the Office from accepting any pain disorder that might be causally related to the
February 22, 2005 work incident.

4

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2007 and September 25, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grottoes, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Rodger L. Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-519
Issued: September 20, 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 27, 2010 appellant, through her representative, filed a timely appeal from
the June 28, 2010 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her request for reconsideration.1 As more than 180 days has lapsed from
the issuance of OWCP’s last merit decision of May 6, 2009, to the filing of this appeal on
December 27, 2010, pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction to review OWCP’s nonmerit
decision.
ISSUE
The issue is whether OWCP properly denied appellant’s May 6, 2010 request for
reconsideration.
1

The delivery date of appellant’s notice of appeal, December 28, 2010, would make her appeal untimely by one
day. The appeal is therefore considered to have been timely filed on the date of mailing, December 27, 2010. 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 25, 2006 appellant, a 44-year-old rural carrier, filed a claim alleging that she
sustained a mental injury as a result of the harsh way her supervisor talked to her. OWCP
accepted her claim for generalized anxiety disorder.
On July 18, 2007 OWCP notified appellant of a proposed decision to rescind the
acceptance of her claim and terminate all benefits. It explained that it failed to make required
findings of fact concerning the allegations and circumstances relating to her claim.
On March 17, 2009 OWCP notified appellant that it had received witness statements
from postal employees and patrons and was offering her an opportunity to submit any comments.
On May 6, 2009 OWCP rescinded its acceptance of appellant’s claim and terminated
compensation benefits. It found that the evidence established no compensable factor of
employment.
On May 6, 2010 appellant requested reconsideration. She argued that she was not
emotional or verbally able to respond meaningfully to the witness statements OWCP had
received. Appellant stated that in April and May 2009 she was on a variety of strong
medications, was in tremendous pain and was very ill. She stated that she was unable to assist in
refuting the written statements submitted. It was only recently, appellant explained, that her
condition significantly improved. She now believed that she was in a position to be of assistance
to counsel in responding to the statements.
Appellant submitted an April 22, 2009 treatment note from a family physician who stated
that appellant still had a lot of problems with stress reaction. She had contracted abdominal pain
and had multiple treatments. The physician listed her medications, reviewed her systems and
diagnosed stress reaction stemming from her relationship with her supervisor. He noted that she
was scheduled for other referrals.
Appellant also submitted a May 8, 2009 report from a physician’s assistant who noted
that she was hospitalized for one week at the end of April, during which time she was treated for
chronic abdominal pain, nausea, vomiting and chronic pain issues. She was seen in follow up on
May 7, 2009. The physician’s assistant noted that appellant was on a number of medications that
would preclude her from potentially returning to any workplace; given the large amount of
narcotic analgesics, even sedentary employment was out of the question for reliability.
Appellant continued to relate the onset of her situational stress, anxiety and depression to what
she perceived as harassment, both verbal and apparently physical, from a supervisor at work.
In a decision dated June 28, 2010, OWCP denied appellant’s May 6, 2010 request for
reconsideration. It found that she failed to provide any new factual evidence to address the issue
upon which her claim was denied.
On appeal, appellant resubmits her May 6, 2010 request for reconsideration.

2

LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.3 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (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.4
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.5 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence 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, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
Appellant sent her May 6, 2010 request for reconsideration within one year of OWCP’s
May 6, 2009 decision to rescind its acceptance of her claim. Her request is therefore timely.
The issue before the Board is whether this request met any of the standards for obtaining a merit
review of her case.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. She did not identify a specific point of law or show that OWCP erroneously
applied or interpreted it.
Appellant’s request did not advance a new and relevant legal argument. She explained
that she was only recently able to respond in a meaningful way to the statements OWCP received
but she made no attempt to do so. Appellant confined her request to matters of personal
circumstance; she did not address the underlying issue relevant to OWCP’s May 6, 2009
decision.
Appellant’s request did not contain relevant and pertinent new evidence not previously
considered by OWCP. She submitted medical evidence. The issue in appellant’s case was
whether the factual evidence failed to establish a compensable factor of employment. Medical
documentation of her symptoms and treatment does not address this issue; it has no tendency to

3

5 U.S.C. § 8128(a).

4

Id. at § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

3

make the existence of a compensable employment factor any more probable than it would be
without the medical documentation.7
Because appellant’s May 6, 2010 request for reconsideration met none of the standards
for obtaining a merit review of her case, the Board finds that OWCP properly denied her request.
The Board will therefore affirm OWCP’s June 28, 2010 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s May 6, 2010 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 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

Fed. R. Evid. 401 (defining relevant evidence). Further, the evidence appellant submitted does not establish
what she intended to show, namely, that she was unable to assist in refuting the statements OWCP had received.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-2168
Issued: February 5, 2007

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 September 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 22, 2005 merit decision denying her traumatic injury claim
and July 11, 2006 nonmerit decision denying her request for review of the written record.
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 sustained a traumatic injury on October 25, 2004
causally related to factors of her federal employment; and (2) whether the Branch of Hearings
and Review properly denied appellant’s request for an oral hearing as untimely under 5 U.S.C.
§ 8124.

FACTUAL HISTORY
On June 11, 2005 appellant, a 37-year-old security screener, filed a traumatic injury
claim, Form CA-1, alleging that on that date she inhaled jet fumes, resulting in an exacerbation
of her asthma condition. In support of her claim, appellant submitted a July 1, 2005 work
excuse, bearing an illegible signature, stating that she was unable to work from July 1 through 5,
2005 due to medical illness.
On August 18, 2005 the Office notified appellant that the evidence submitted was
insufficient to establish her claim. It advised her to provide additional documentation, including
a physician’s opinion supported by a medical explanation as to how the reported work incident
caused or aggravated the claimed injury. In response, appellant submitted physicians’ notes,
bearing illegible signatures, dated July 1, 5 and 12 and August 23, 2005. Notes dated July 1,
2005 reflected subjective complaints of fatigue, dyspnea, orthopnea, headache and rash. An
assessment of “asthma” was provided. Notes dated July 5, 2005 indicated subjective complaints
of fatigue, sore throat, dyspnea, wheezing, PNO, orthopnea, right-sided chest pain with deep
inspiration, palpitations, dizziness and rash. The notes reflected objective evidence of a skin rash
and an assessment of “asthma.” August 23, 2005 notes revealed a mild worsening of appellant’s
skin rash and assessments of “asthma, dermatitis and allergic rhinitis.” Unsigned notes dated
July 12, 2005 reflected appellant’s report that she had visited the emergency room on July 9,
2005, as a result of an asthma attack at work. Appellant also stated that her work area was hot,
humid and dusty. The report reflected objective evidence of a worsened skin rash and
assessments of “asthma/dermatitis.” Appellant also submitted an undated report of a pulmonary
function examination, which reflected normal pulmonary function.
By decision dated September 22, 2005, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that the claimed medical condition was
causally related to the accepted work-related incident.1
Appellant submitted a recurrence of disability claim, dated August 17, 2005 and received
on October 31, 2005. She alleged that her original injury occurred on June 11, 2005. Appellant
stated that she continued to experience asthma attacks due to diesel release from the air vents, as
well as dust and mildew at work. In a letter dated November 15, 2005, the Office informed
appellant that no action would be taken on her recurrence claim, as her original claim had been
denied.
Appellant submitted a request for review of the written record dated June 21, 2006. The
record contains a copy of an envelope to the Branch of Hearings and Review postmarked
June 30, 2006.

1

The Board notes that appellant submitted additional evidence after the Office rendered its September 22, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Accordingly, the evidence submitted after the issuance of the September 22, 2005 decision cannot be
considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell,
5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to the Office, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

2

By decision dated July 11, 2006, appellant’s request for review of the written record was
denied as untimely, finding that the issue in this case could equally well be addressed by
requesting reconsideration from the Office.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.2 When an
employee claims that she sustained a traumatic injury in the performance of duty, she must
establish the “fact of injury,” namely, appellant must submit sufficient evidence to establish that
she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged and that such event, incident or exposure caused an injury.3
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The 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
established incident or factor of employment.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.6

2

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

3

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
4

Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

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

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits and that the workplace incident occurred as alleged. The issue,
therefore, is whether she has submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion establishing that the work-related incident caused or aggravated any
particular medical condition or disability. Therefore, appellant has failed to satisfy her burden of
proof.
The medical evidence of record includes a report of a pulmonary function examination
and physicians’ notes that were either unsigned or contained illegible signatures. These forms,
lack proper identification and cannot be considered as probative evidence.7 Moreover, none of
the reports submitted contain any facts supporting a relationship between the June 11, 2005
incident and appellant’s diagnosed condition or any opinion as to the cause of her condition. The
Board has long held that medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.8
Appellant expressed her belief that her asthmatic condition was exacerbated by her
exposure to jet fumes on June 11, 2005. 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.9 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.10 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that her condition was caused by the work-related event is
not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report, which described appellant’s symptoms and contained test results, diagnosis,
treatment and the doctor’s opinion, with medical reasons, on the cause of her condition.
Appellant failed to submit appropriate medical documentation in response to the Office’s
request. There is no probative, rationalized medical evidence addressing how appellant’s
claimed condition was caused or aggravated by her employment, appellant has not met her
burden of proof in establishing that she sustained an injury in the performance of duty causally
related to factors of her federal employment.

7

See Merton J. Sills, 39 ECAB 572 (1988).

8

Michael E. Smith, 50 ECAB 313 (1999).

9

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

10

Id.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant for compensation not satisfied
with a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on her claim before a representative of the Secretary.11
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.12 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.13
ANALYSIS -- ISSUE 2
The Office issued a decision on September 22, 2005 denying appellant’s traumatic injury
claim. Appellant requested a review of the written record by submitting an appeal request form
dated June 21, 2006 and postmarked June 30, 2006. By decision dated July 11, 2006, the Office
denied appellant’s request as untimely. As her request for review of the written record was
postmarked on June 30, 2006, more than 30 days after the Office issued its September 22, 2005
decision, appellant was not entitled to a review of the written record as a matter of right.
The Office has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right.14 The Office properly
exercised its discretion by stating that it had considered the matter in relation to the issue
involved and denied appellant’s request for a review of the written record on the grounds that the
case could be resolved by submitting additional evidence to the Office in a reconsideration
request. The Board has held that the only limitation on the Office’s discretionary authority is
reasonableness. An abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deduction from established facts.15 In this case, the evidence of record does not
establish that the Office took any action in connection with its denial of appellant’s request for an
oral hearing which could be construed to be an abuse of discretion. Therefore, the Office
properly denied her request for an oral hearing as untimely under section 8124 of the Act.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury causally related to her employment. The Branch of Hearings and Review properly denied
appellant’s request for a review of the written record as untimely under 5 U.S.C. § 8124.
11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. §§ 10.616 and 10.617.

13

Claudio Vasquez, 52 ECAB 496 (2002).

14

Afegalai L. Boone, 53 ECAB 533 (2002).

15

See André Thyratron, 54 ECAB 257 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the July 11, 2006 and September 22, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 5, 2007
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