United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joyce Fuller, for the appellant
Office of Solicitor, for the Director

Docket No. 10-2378
Issued: August 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 29, 2010 appellant filed a timely appeal of an August 3, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP), finding that his request for
reconsideration was untimely and failed to show clear evidence of error. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the August 3, 2010 decision. The Board does not have jurisdiction over the merits of this
claim.2
ISSUE
The issue is whether OWCP properly determined appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.
1
2

U.S.C. § 8101 et seq.

The last merit decision was OWCP’s decision dated April 22, 2002. The Board has jurisdiction over final
decisions of OWCP. See 20 C.F.R. § 501.2(c). For OWCP decisions issued prior to November 19, 2008, a claimant
had one year to file an appeal. An appeal of OWCP decisions issued on or after November 19, 2008 must be filed
within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On August 10, 2000 appellant, then a 36-year-old mail processor, filed a traumatic injury
claim alleging that he sustained shoulder, clavicle strain and right rotator cuff injury on
August 9, 2000 when a coworker tapped him on the shoulder, causing him to “go to his knees.”
By merit decisions dated November 22, 2000 and April 22, 2002, OWCP denied the claim on the
grounds that the medical evidence did not establish that the diagnosed conditions were causally
related to the alleged incident. The case has previously been before the Board. By decision
dated December 21, 2005, the Board affirmed an August 27, 2004 OWCP decision finding that
appe1lant’s request for reconsideration was untimely filed and failed to show clear evidence of
error.3 In a decision dated August 17, 2007, the Board dismissed his appeal as there was no final
decision issued within one year of the filing of the appeal.4 By decision dated June 20, 2008, the
Board affirmed an October 12, 2007 OWCP decision, finding appellant’s application for
reconsideration was untimely and showed no clear evidence of error.5 In a decision dated
December 17, 2009, the Board affirmed a February 13, 2009 OWCP decision, finding his
application for reconsideration as untimely and failed to show clear evidence of error. The
history of the case as contained in the Board’s prior decisions and orders is incorporated herein
by reference.
By letter dated June 14, 2010, appellant requested reconsideration of his claim. He
submitted treatment notes from Dr. Gary Gartsman, an orthopedic surgeon, dated August 22 and
23, 2000. Appellant also resubmitted a September 18, 2000 report from Dr. Gartsman, as well as
duty status reports (Form CA-17) dated May 17 to September 5, 2000 from Dr. J.P. Trowbridge,
a general practitioner.
On reconsideration appellant argued that OWCP had “failed to adequately develop the
case file.” He asserted the November 22, 2000 decision did not consider the medical evidence
submitted, including a preexisting injury. According to appellant, “new evidence shows the
intervening incident did not cause a new injury,” noting Dr. Gartsman’s September 18, 2000
report. He also argued that the September 21, 2001 and April 22, 2002 OWCP’s decisions failed
to develop and consider the evidence. With respect to the April 22, 2002 decision, appellant
stated that it did not mention the September 18, 2000 report.
By decision dated August 3, 2010, OWCP determined appellant’s application for
reconsideration was untimely. It denied the application on the grounds that it did not show clear
evidence of error by OWCP.

3

Docket No. 04-2283 (issued December 21, 2005).

4

Docket No. 07-978 (issued August 17, 2007).

5

Docket No. 08-271 (issued June 20, 2008).

2

LEGAL PRECEDENT
The Act provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.6 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”7
Section 8128(a) of the Act8 does not entitle a claimant to a review of OWCP’s decision as
a matter of right.9 This section vests OWCP with discretionary authority to determine whether it
will review an award for or against compensation.10 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).11 As one such
limitation, it has stated that it will not review a decision denying or terminating a benefit unless
the application for reconsideration is filed within one year of the date of that decision.12 The
Board has found that the imposition of this one-year limitation does not constitute an abuse of
the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).13
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of OWCP’s decision upon presentation of new evidence that the decision was
erroneous.14 In accordance with this holding OWCP has stated in its Procedure Manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of OWCP.15
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.16 The evidence must be positive, precise and explicit and must be
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.605 (1999).

8

5 U.S.C. § 8128(a).

9

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

10

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
11

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that OWCP erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by OWCP; or (3) constituting relevant and pertinent evidence not previously
considered by OWCP; see 20 C.F.R. § 10.606(b).
12

20 C.F.R. § 10.607(a).

13

See Leon D. Faidley, Jr., supra note 9.

14

Leonard E. Redway, 28 ECAB 242 (1977).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

16

See Dean D. Beets, 43 ECAB 1153 (1992).

3

manifest on its face that OWCP committed an error.17 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.18 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.19 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.20 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.21 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.22
ANALYSIS
As the Board noted in its December 17, 2009 decision, the last OWCP’s decision on the
merits of the underlying claim for injury on August 9, 2000 was an April 22, 2002 decision. The
application for reconsideration was dated June 14, 2010. Since this is more than one year after
the last merit decision, it is untimely filed.
The issue therefore is whether the application for reconsideration establishes clear
evidence of error by OWCP in the denial of the claim for injury on August 9, 2000. With his
application, appellant submitted form reports from Dr. Trowbridge, a September 18, 2000 report
from Dr. Gartsman and treatment notes from Dr. Gartsman dated August 22 and 23, 2000. He
argued that OWCP did not consider all the evidence and specifically stated that the April 22,
2002 decision did not mention the September 18, 2000 report from Dr. Gartsman. The report
was specifically addressed in the November 21, 2001 decision by the OWCP’s hearing
representative. There is no evidence that OWCP failed to consider the probative evidence of
record. The evidence from Dr. Gartsman does not establish clear evidence of error. The
treatment notes refer to appellant being hit on the shoulder and falling to his knees, which was
not factually established. There is no rationalized medical opinion on causal relationship
between a diagnosed shoulder condition and an August 9, 2000 employment incident.
Appellant appears to argue that the evidence shows this was not a “new injury.” He filed
a claim based on an employment incident on August 9, 2000. Even if the injury is an
aggravation of a prior injury or involves the same part of the body as a prior injury, it is still
17

See Leona N. Travis, 43 ECAB 227 (1991).

18

See Jesus D. Sanchez, 41 ECAB 964 (1990).

19

See Leona N. Travis, supra note 17.

20

See Nelson T. Thompson, 43 ECAB 919 (1992).

21

Leon D. Faidley, Jr., supra note 9.

22

Gregory Griffin, 41 ECAB 458 (1990).

4

considered a new injury if the claim is based on new employment incidents or exposures.23 It
was appellant’s burden of proof to submit evidence sufficient to establish the claim. The
evidence submitted on reconsideration is not sufficient to establish clear evidence of error.
Dr. Trowbridge provided form reports that do not provide a complete and accurate background
or a probative medical opinion on causal relationship between a diagnosed condition and the
employment incident. As noted above, the clear evidence of error standard is difficult to meet; it
is not enough to show that the evidence could be construed so as to produce a contrary
conclusion. It must prima facie shift the weight of the evidence in appellant’s favor. The
June 14, 2010 application for reconsideration does not show clear evidence of error by OWCP.
On appeal, appellant argues the application for reconsideration was timely, noting the
Board decision dated December 17, 2009. This decision was not decision on the merits of the
claim and only a merit decision by the Board would provide an additional one year to timely
request reconsideration.24 Appellant also reiterates the arguments raised to OWCP. For the
reasons noted, the clear evidence of error standard has not been met in this case.
CONCLUSION
The Board finds that the application for reconsideration was untimely and failed to show
clear evidence of error.

23

See J.P., Docket No. 10-2043 (issued June 6, 2011); Federal (FECA) Procedure Manual, supra note 15 at
Recurrences, Chapter 2.1500.3(b)(2) (May 1997).
24

A right to reconsideration within one year accompanies any merit decision on the issues. Federal (FECA)
Procedure Manual, supra note 15, Chapter 2.1602.3(b) (June 1997).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2010 is affirmed.
Issued: August 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 08-2062
Issued: September 23, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from the August 13, 2007 merit decision
of the Office of Workers’ Compensation Programs granting a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than four percent impairment to her left upper
extremity.
FACTUAL HISTORY
On August 11, 2006 appellant, then a 55-year-old mail processing clerk, injured her left
shoulder and neck while lifting trays of mail in her federal employment. She felt a pulling
sensation in her neck and left shoulder. By letter dated November 17, 2006, the Office accepted
appellant’s claim for a cervical sprain. On December 8, 2006 appellant underwent a microscopic
anterior cervical discectomy, bone bank interbody fusion and anterior cervical plate fixation at
C4-5. The Office also accepted left cervical radiculitis, displacement or rupture of C4-5 disc and
Horner’s syndrome. It paid compensation and medical benefits.

On April 3, 2007 appellant filed a claim for a schedule award. On June 8, 2007 the
Office denied her claim, finding that the Federal Employees’ Compensation Act does not allow
schedule awards for impairment to the back or brain. Appellant was advised that if she had any
impairment to an upper extremity she could pursue her claim.
By letter dated July 13, 2007, appellant advised that she had scheduled an appointment
with Dr. Robert P. Durning, a Board-certified orthopedic surgeon, to obtain an impairment
rating. Dr. Durning examined appellant and reviewed her medical records. He diagnosed neck
pain and limited motion from degenerative changes at C5-6 and C6-7 (present prior to
August 11, 2006), status post discectomy and anterior spinal fusion at C4-5, which was related to
the August 11, 2006 work incident. This resulted in left upper extremity symptoms and mild left
C5 nerve dysfunction (left biceps muscle weakness and hyporeflexia). Dr. Durning also
diagnosed right Horner’s syndrome. He opined that the C4-5 disc herniation was due to the
August 11, 2006 injury and that the anterior cervical surgery of December 8, 2006 was also made
necessary by the work injury. Dr. Durning opined that the most recent surgery had reduced, but
not eliminated appellant’s neck and left upper extremity symptoms but that she continued to
experience left C5 nerve root dysfunction. He opined that appellant had six percent impairment
to the left upper extremity or four percent whole person impairment pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th edition 2001)
(A.M.A., Guides). Appellant experienced pain that interfered with some activities which was a
Grade 3 sensory deficit.1 Dr. Durning noted that the range of Grade 3 deficit was 26 to 60
percent, of which he allowed the maximum. He noted that the maximum upper extremity
impairment allowed for C5 nerve root sensory loss was five percent.2 Dr. Durning multiplied the
60 percent deficit by 5 percent to total 3 percent sensory impairment. He also found Grade 4
muscle deficit, for which a range of 1 to 25 percent motor deficit was allowed. Dr. Durning
graded appellant’s motor deficit as 10 percent.3 He noted a maximum of 30 percent upper
extremity impairment for C5 motor weakness.4 Multiplying the motor deficit by the maximum
impairment totaled 3 percent. Dr. Durning combined the sensory and motor impairment values
to find a total of six percent. He also stated that appellant had 25 percent impairment of her
cervical spine due to residual effects.
In an August 9, 2007 report, the Office medical adviser determined that appellant had
four percent impairment to her left upper extremity. He agreed with Dr. Durning’s determination
that appellant had three percent impairment of the left upper extremity based on C5 motor
deficit. However, the Office medical adviser did not agree with Dr. Durning’s rating of sensory
impairment. He noted that Dr. Durning had assigned a Grade 3 deficit, but that in order to justify
this there would have to be both reduced light touch and two-point discrimination. Although
appellant had ongoing radiculopathy in the C5 nerve root distribution, the finding revealed
normal two-point discrimination. Therefore, the Grade 3 was not justified. The Office medical
1

A.M.A., Guides 482, Table 16-10.

2

Id. at Table 16-13.

3

Id. at 484, Table 16-13.

4

Id. at 489, Table 16-13.

2

adviser stated that a Grade 4 sensory deficit should have been assigned, which allowed a
maximum of 25 percent. He then rated sensory loss of the C5 nerve by multiplying the 25
percent deficit by 5 percent (the maximum for upper extremity impairment due to C5 sensory
deficit).5 This totaled 1.25 which the Office medical adviser rounded to a one percent sensory
deficit. Appellant’s combined left upper extremity impairment due to sensory and motor loss
was four percent.
By decision dated August 13, 2007, the Office issued a schedule award for four percent
impairment of the left arm.
LEGAL PRECEDENT
The schedule award provision of the Act6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.
ANALYSIS
The Board notes that neither the Act nor the implementing federal regulations provide for
the payment of a schedule award for whole body impairment to the back or cervical spine.8 The
Office properly did not base the schedule award in this case on the 25 percent impairment to her
cervical spine.
The Office granted a schedule award for four percent impairment to the left upper
extremity based on the opinion of the Office medical adviser. However, the Board finds that the
weight of the medical evidence rests with the opinion of Dr. Durning, the Board-certified
orthopedic surgeon, who examined appellant and rated impairment of six percent. The Board
has held that the impairment rating of an examining physician may take precedence over the
opinion of an Office medical adviser when considering subjective factors.9 Dr. Durning
considered the subjective factors of pain and supported his opinion with sound rationale and a
proper application of the A.M.A., Guides.

5

Id. at 489, Table 16-10; 482, Table 16-13. .

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Tomas Martinez, 54 ECAB 623, 625-26 (2003).

9

Michelle L. Collins, 56 ECAB 552 (2005); Richard Giordano, 36 ECABG 134 (1984).

3

Dr. Durning found that appellant had a three percent impairment based on C5 motor
deficit. The Office medical adviser agreed with Dr. Durning’s calculation in this matter.
However, Dr. Durning also found that appellant had three percent impairment due to C5 sensory
deficit. He properly applied the A.M.A., Guides and indicated that appellant had a Grade 3
deficit based on pain or sensory deficit that interfered with some activities. Dr. Durning allowed
for 60 percent (the maximum amount for a Grade 3 impairment) which he multiplied by 5
percent (the maximum impairment for C5 nerve root sensory deficit or pain).10 The Office
medical adviser disagreed stating that appellant had a Grade 4 deficit of 25 percent.
The Board will modify the Office’s August 13, 2007 decision to allow the sensory rating
recommended by Dr. Durning. Based on this evidence appellant has six percent impairment of
her left arm.
CONCLUSION
The Board finds that appellant has six percent impairment to the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 13, 2007 be affirmed, as modified.
Issued: September 23, 2009
Washington, DC

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

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

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

10

Supra note 5.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., claiming as widow of L.V., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1358
Issued: February 2, 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 May 31, 2006 appellant filed a timely appeal from the May 12, 2006 merit decision of
the Office of Workers’ Compensation Programs denying appellant’s claim for death benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether the employee’s death was causally related to his December 3, 1968
employment injury to his right knee.
FACTUAL HISTORY
On December 3, 1968 the employee, then a 31-year-old carpenter welder, sustained an
injury to his right knee while in the performance of duty. The Office accepted his claim for tear
of the medial cartilage of the right knee and synovitis of the right knee and appropriate medical
and compensation benefits were paid.

On January 9, 2005 appellant filed a claim for death benefits. The claim included a form
completed by someone at Decatur Oncology, whose signature is illegible, indicating that the
employee died from prostate cancer and that contributing causes were tumor progression and
resistance to therapy. It was further stated that the cause of prostate cancer was unknown.
Appellant also submitted a death certificate indicating that the employee died on
November 18, 2005. The cause of death listed on the death certificate was prostate cancer,
stage 4.
By decision dated May 12, 2006, the Office denied appellant’s claim as she did not
establish that the employment injury caused or contributed to the employee’s death.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.1
An appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his or her federal
employment. This burden includes the necessity of furnishing medical opinion evidence of a
cause and effect relationship based on a proper factual and medical background. The mere
showing that an employee was receiving compensation for total disability at the time of death
does not establish that the employee’s death was causally related to his or her federal
employment.2
ANALYSIS
Appellant submitted no rationalized medical evidence relating the employee’s death on
November 18, 2005 to his December 3, 1968 right knee injury. The death certificate and the
medical note on the claim form clearly indicate that appellant’s death was caused by prostate
cancer. In order to be entitled to death benefits, appellant must submit medical evidence from a
physician addressing how the employee’s death was causally related to his or her federal
employment.3 As appellant did not submit any evidence linking her husband’s death to his work
injury, the Office properly denied her claim for death benefits. Appellant’s allegations regarding
financial hardship and the incorrect assumption that compensation benefits would continue after
his death are not relevant to the issue at hand.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on November 18, 2005 was causally related to his employment injury of
December 3, 1968.
1

5 U.S.C. § 8102(a); see id. at § 8133 (compensation in case of death).

2

Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552 (1989).

3

Id.

2

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 12, 2006 is affirmed.
Issued: February 2, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-315
Issued: May 4, 2015

Case Submitted on the Record

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

JURISDICTION
On November 25, 2014 appellant, through counsel, filed a timely appeal from July 14
and September 15, 2014 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a lumbar injury in the
performance of duty on June 7, 2013.
FACTUAL HISTORY
On June 19, 2013 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 7, 2013 he sustained a lower back and bilateral hip injury
when he was pushing a loaded hamper to a vehicle. The middle caster shifted and caught the
1

5 U.S.C. § 8101 et seq.

ground, resulting in a sudden sharp shift of the hamper, which caused him to twist abruptly.
Appellant stopped work and first sought medical treatment on June 10, 2013. He notified his
supervisor on June 19, 2013 who controverted the claim arguing there was no firm medical
diagnosis.
In a June 21, 2013 report, Ann McCullough, a physician assistant, reported that she was
treating appellant for the last month for low back pain with lower extremity radiculopathy. She
reported that his symptoms were exacerbated at work which consisted of constant lifting,
bending, and stooping.
By letter dated July 1, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days. No evidence was received.
By decision dated August 5, 2013, OWCP denied appellant’s claim as the evidence was
insufficient to establish an injury due to the accepted June 7, 2013 incident. It found that he had
failed to provide any evidence containing a medical diagnosis in connection with the accepted
June 7, 2013 employment incident.
On June 26, 2014 appellant requested reconsideration of the August 5, 2013 decision.
In a February 17, 2014 medical report, Dr. Robert R. Reppy, a doctor of osteopathic
medicine, reported that on June 7, 2013 appellant was working at the employing establishment,
pushing a loaded hamper full of mail weighing over 100 pounds, when one of its casters caught
and shifted the hamper, causing appellant to twist abruptly. Appellant’s back was twisted to the
left and he immediately felt a sharp muscular twinge in the thoracic and lumbar region. The pain
grew progressively worse throughout the day and he sought treatment with his general
practitioner. Dr. Reppy provided findings on physical examination and diagnosed left shoulder
impingement syndrome, left supraspinatus tendinopathy per a July 21, 2013 magnetic resonance
imaging (MRI) scan, left infraspinatus tendinopathy, left subscapularis tendinopathy, and lumbar
sprain. He noted that the lumbar sprain diagnosis was presumptive and should be considered
pending further radiographic studies. Dr. Reppy recommended physical therapy, an MRI scan of
the lumbar spine, and restricted appellant from pulling/pushing over 50 pounds.
In reports dated March 4, 2014, Dr. Mark J. Timken, a Board-certified diagnostic
radiologist, providing MRI scan findings pertaining to the left hip, right shoulder, left shoulder,
and lumbar spine. On March 10, 2014 appellant underwent a physical capacity evaluation and
on March 19, 2014 he underwent a nerve conduction study of the lower extremities.
In a March 31, 2014 report, Dr. Reppy provided findings on physical examination and
diagnosed supraspinatus and subscapularis tears bilaterally, bilateral shoulder impingement
syndrome, right rotator cuff tear, and lumbar sprain/strain. He opined that based on appellant’s
history and examination, his conditions and symptoms were compatible with the workplace
scenario described. Dr. Reppy noted that repetitive motion while weight bearing had long been
recognized as an etiology for degenerative conditions of the shoulder joint tendons and/or rotator
cuff. He provided appellant with increased work restrictions.

2

In an April 29, 2014 initial orthopedic evaluation, Dr. Richard M. Blecha, a Boardcertified orthopedic surgeon, provided a detailed explanation of appellant’s daily employment
duties as a postal service rural letter carrier where he had been employed for several years. He
described the June 7, 2013 employment incident stating that appellant was pushing a hamper
loaded with approximately 150 pounds of parcels and mail when the hamper wheel caught the
concrete and abruptly shifted, causing appellant to twist his back. Dr. Blecha provided findings
on examination and a summary of prior medical and diagnostic reports. Appellant’s prior
medical history included low back pain over the years but nothing to this magnitude. He had
also experienced a motor vehicle accident in 1980 but his injuries had since resolved. Dr. Blecha
diagnosed degenerative disc disease at L3-4 and facet arthropathy with resultant foraminal
stenosis at L3-4, L4-5, and L5-S1. He noted that appellant’s daily routine at the employing
establishment consisted of considerable bending, twisting, and lifting over several years.
Dr. Blecha opined that these activities likely resulted in the degenerative changes of the facets
producing a foraminal stenosis and the degenerative disc disease at L3-4. He further stated that
symptoms had worsened considerably and brought sharply into focus by the incident in which
the wheel of the hamper caught and caused appellant to wrench his back on June 7, 2013.
On May 5, 2014 appellant underwent another physical capacity evaluation. In reports
dated May 9, 2014, Dr. Timken provided MRI scan findings pertaining to the right foot, cervical
spine, and right ankle.
In a May 19, 2014 medical report, Dr. Samy F. Bishai, Board-certified in emergency
medicine, provided a description of the June 7, 2013 employment incident when appellant was
pushing a loaded hamper and a broken wheel caught the ground, causing him to twist his back.
Appellant complained of sharp pains in his lower back with radiation down to the legs. He noted
a prior medical history of minor back aches from the time he spent in the military and a
motorcycle accident that occurred in 1980 in which he landed on his back. Dr. Bishai reviewed
the March 4, 2014 lumbar MRI scan, provided findings on examination, and diagnosed lumbar
disc syndrome, degenerative disc disease at L3-4, L4-5, and L5-S1 with spinal stenosis, and
radiculopathy of the lower extremities bilaterally, more severe on the right.
By decision dated July 14, 2014, OWCP affirmed the August 5, 2013 decision. It found
findings that appellant had established a diagnosed condition of degenerative disc disease but
had failed to prove that it was causally related to the accepted June 7, 2013 employment incident.
On July 17, 2014 appellant requested reconsideration of the July 14, 2014 decision.
In support of his claim, appellant submitted a June 5, 2014 medical report from
Dr. Bishai, who explained that appellant was a postal service rural letter carrier and suffered a
work-related back injury on June 7, 2013 when pushing a loaded hamper and a broken wheel
caught the ground, causing him to twist his back. He immediately felt severe, sharp pain in his
back with radiation down the legs. Dr. Bishai reported that appellant’s condition was aggravated
because he returned to work following the incident, causing an increase in symptoms. He noted
that appellant’s OWCP claim was initially accepted for sprain of the lumbar region with an
ICD92 code of 847.2 but that his injury was more than that of a lumbosacral strain. Dr. Bishai
2

The International Classification of Diseases, 9th Revision (ICD9).

3

stated that appellant suffered from degenerative disc disease of the lumbar spine as well as
bulging discs in the lumbar region of his spine. He opined that his disc conditions developed
over a period of time while working as a postal service rural letter carrier and that the June 7,
2013 incident caused a sharp increase in symptoms, resulting in pain in his lower back with
radiation down to the legs.
Dr. Bishai noted review of appellant’s employee statement, his work schedule, and duties
related to his employment. He provided a detailed explanation describing appellant’s eight-hour
daily employment duties. Dr. Bishai noted that appellant’s duties included casing mail which
entailed twisting, turning, continuous reaching over the shoulder, prolonged standing, and
bending to pick up letter trays and tubs. His task of separating parcels entailed bending,
stooping, reaching, twisting, and turning. Dr. Bishai was then required to take the sorted parcels,
place them in tubs weighing 10 to 30 pounds, and lift these tubs into the wheeled hamper which
stood approximately three feet tall resulting in repetitive lifting and bending. The hamper would
then be wheeled to the vehicle for loading. Dr. Bishai stated that it was at this point in
appellant’s daily activities that he sustained his injury on June 7, 2013 when wheeling out the
loaded hamper. As he was wheeling the hamper loaded with approximately 150 pounds of
parcels and mail, appellant rounded a turn and the previously damaged right center wheel coaster
caught the concrete ground which caused the hamper to shift and twist abruptly, causing his back
to twist abruptly too. He felt pain from this incident, but continued to work throughout the day,
loading his vehicle and placing tubs from the hamper on the platform which consisted of lifting,
bending, twisting, turning, reaching, and stooping. Appellant then had to extract mail and
parcels from the hamper which required leaning into the hamper and lifting the trays and tubs
from a height below the knee. He was then required to extract mail from a U-cart by leaning into
the equipment and lifting the trays and tubs from a height above the waist level. Following these
activities at work, appellant had to deliver the mail to approximately 330 centralized boxes.
Dr. Bishai diagnosed lumbar disc syndrome, degenerative disc disease at L3-4, L4-5, and
L5-S1 with spinal stenosis, and radiculopathy of the lower extremities bilaterally, more severe on
right. He reported that appellant’s grueling work schedule entailed a great deal of bending,
stooping, twisting of the back, lifting, all of the processes of casing mail, all of the motions of
taking the mail out to load in to the long life vehicle, and the delivery of the mail. These
activities placed a great burden on appellant’s lumbar spine and caused the development of tears
in the annulus fibrosis of the discs which lead to bulging of the nucleus pulposus, or the soft part
of the disc. This then lead to the bulging of the disc and caused pressure on the nerve roots that
gave the painful condition of radiculopathy as pain radiated from the back down to the legs.
Dr. Bishai stated that based on appellant’s history, review of his work schedule, and the activities
that occurred at work on June 7, 2013, there was an obvious causal relationship between his
symptoms and his work activities. He further stated that the physical examination findings,
appellant’s history, and diagnostic studies provided additional support that appellant’s symptoms
were caused by his work-related activities as described. Dr. Bishai noted that, after returning to
work, the sequence of activities while working as a rural mail carrier caused him to suffer
aggravation of the original injury which was reflected in his increase of symptoms in the back
and legs. He stated that he was providing a rationalized medical opinion showing the
relationship between the work activities and appellant’s current symptoms, explaining that the
symptoms he complained of at the time of the June 7, 2013 injury showed the link between his
diagnosed conditions and his activities at work that caused him to suffer from this condition
4

affecting the discs. The causal relationship was established because appellant’s symptoms in his
back and legs were directly related to his work activities, and were also connected to his
diagnosed conditions from the June 7, 2013 work injury, as well as afterwards when he
continued to work as a postal service rural letter carrier, resulting in an aggravation and increase
of symptoms. Dr. Bishai concluded that appellant continued to suffer from the June 7, 2013
injury and could not return to work pending further medical treatment.
By decision dated September 15, 2014, OWCP denied modification of its July 14, 2014
decision, finding that appellant had failed to establish that his diagnosed medical conditions were
causally related to the accepted June 7, 2013 work-related incident. It noted that Dr. Bishai’s
reports made it unclear whether appellant suffered a traumatic or occupational injury. OWCP
noted that he had previously billed OWCP for a lumbar strain ICD9 847.2 which contradicted the
diagnoses provided in his report. It further stated that Dr. Bishai’s description of the June 7,
2013 employment incident was not consistent with that provided on appellant’s Form CA-1 as he
failed to describe the weight of the mail trays or explain that his job required twisting, turning,
bending, and lifting.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while 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.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.7 The opinion of the physician
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

6

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

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

5

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. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.8
ANALYSIS
OWCP accepted that the June 7, 2013 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused him a lumbar injury. The Board
finds that he did not submit sufficient medical evidence to support that his lumbar injury was
causally related to the June 7, 2013 employment incident.9
In medical reports dated February 17 and March 31, 2014, Dr. Reppy reported that on
June 7, 2013 appellant was working at the employing establishment and twisted his back when
pushing a loaded hamper weighing over 100 pounds. He provided findings on physical
examination and diagnosed supraspinatus and subscapularis tears bilaterally, bilateral shoulder
impingement syndrome, right rotator cuff tear, and lumbar sprain/strain. Dr. Reppy opined that
based on appellant’s history and examination, his conditions and symptoms were compatible
with the workplace scenario described. He noted that repetitive motion while weight bearing had
long been recognized as an etiology for degenerative conditions of the shoulder joint tendons
and/or rotator cuff.
The Board finds that the opinion of Dr. Reppy is not well rationalized. Dr. Reppy
provided multiple diagnoses and only generally stated that appellant’s conditions and symptoms
were compatible with the June 7, 2013 workplace injury. He failed to explain how the June 7,
2013 employment incident caused or aggravated the diagnoses provided. Moreover, Dr. Reppy
explained that repetitive motion while weight bearing had long been recognized as an etiology
for degenerative conditions of the shoulder joint tendons and/or rotator cuff. In this instance, he
is implying that appellant’s shoulder conditions are related to his occupational duties and not to
this June 7, 2013 traumatic incident. Furthermore, appellant has not alleged a shoulder injury
resulting from the June 7, 2013 incident. Dr. Reppy failed to provide a sufficiently rationalized
medical opinion pertaining to the cause of appellant’s lumbar condition. As his statement on
causation lacks a sufficient explanation as to the mechanism of injury pertaining to this traumatic
injury claim, namely, how twisting appellant’s back while pushing a hamper would cause him
injury, his reports are insufficient to meet appellant’s burden of proof.10

8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

S.W., Docket 08-2538 (issued May 21, 2009).

6

Dr. Blecha’s April 29, 2014 report is also insufficient to establish appellant’s traumatic
injury claim. He provided a detailed explanation of appellant’s daily employment duties as a
postal service rural letter carrier as well as a description of the June 7, 2013 employment incident
when he twisted his back while pushing a hamper weighing about 150 pounds. Dr. Blecha
diagnosed degenerative disc disease at L3-4 and facet arthropathy with resultant foraminal
stenosis at L3-4, L4-5, and L5-S1. He noted that appellant’s daily routine at the employing
establishment consisted of considerable bending, twisting, and lifting over several years and
opined that these activities likely resulted in the degenerative changes of the facets, producing a
foraminal stenosis and the degenerative disc disease at L3-4. The Board notes that Dr. Blecha is
attributing appellant’s conditions to his work environment over a period longer than a single
workday or shift rather than an injury from a single occurrence within a single workday as
alleged by appellant in this claim.11 Dr. Reppy’s statement that appellant’s symptoms had
worsened as a result of the June 7, 2013 incident is highly speculative.12 Thus, his opinion is of
limited probative value.13
In medical reports dated May 19 and June 5, 2014, Dr. Bishai provided a description of
the June 7, 2013 employment incident when appellant was pushing a loaded hamper and a
broken wheel caught the ground, causing him to twist his back. He also provided a detailed
description of appellant’s daily employment duties which entailed twisting, turning, continuous
reaching over the shoulder, prolonged standing, bending, stooping, lifting, pushing, and leaning.
Dr. Bishai reviewed the March 4, 2014 lumbar MRI scan, provided findings on examination, and
diagnosed lumbar disc syndrome, degenerative disc disease at L3-4, L4-5, and L5-S1 with spinal
stenosis, and radiculopathy of the lower extremities bilaterally, more severe on the right. He
opined that appellant’s disc conditions developed over a period of time while working as a postal
service rural letter carrier and that the June 7, 2013 incident caused a sharp increase in
symptoms, resulting in pain in his lower back with radiation down to the legs. Dr. Bishai further
stated that appellant’s condition was aggravated because he returned to work following the
incident which caused an increase in symptoms.
The Board finds that the opinion of Dr. Bishai is not sufficiently rationalized. Dr. Bishai
opined that appellant’s degenerative disc disease and bulging discs developed over a period of
time working as a postal service rural mail carrier and that the June 7, 2013 incident caused a
sharp increase in symptoms. He reported that appellant’s grueling work schedule entailed a great
deal of bending, stooping, twisting of the back, lifting, all of the processes of casing mail, all of
the motions of taking the mail out to load into the vehicle, and the delivery of the mail. These
activities placed a great burden on appellant’s lumbar spine and caused the development of tears
in the annulus fibrosis of the discs which lead to bulging of the nucleus pulposus, or the soft part
of the disc. This then lead to the bulging of the disc and caused pressure on the nerve roots that
gave the painful condition of radiculopathy as pain radiated from the back down to the legs. In
11

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
12

M.R., Docket No. 14-11 (issued August 27, 2014).

13

D.H., Docket No. 14-1852 (issued January 27, 2015).

7

this instance, Dr. Bishai is attributing appellant’s lumbar conditions to an occupational injury
produced by his work environment over a period longer than a single workday or shift claim.14
While his statement on causation provides an explanation as to the mechanism of injury, it is
irrelevant in this traumatic injury claim as he failed to explain how twisting appellant’s back
while pushing a heavy hamper caused an aggravation of these conditions.15 Thus, Dr. Bishai’s
opinion pertaining to appellant’s work-related duties as the cause of his injuries does not provide
support for the traumatic injury claim.16
Dr. Bishai’s opinion that the June 7, 2013 incident caused an increase in symptoms,
which worsened because appellant continued to work, is also equivocal as he is attributing
appellant’s symptoms to the employment incident and not his diagnosed conditions.17 With
respect to this traumatic injury claim, he is generally stating that appellant’s preexisting lumbar
conditions worsened as a result of the June 7, 2013 employment incident and progressed because
he continued to work following that date. As appellant’s conditions are degenerative in nature, a
well-rationalized opinion is particularly warranted in this case due to his history of preexisting
conditions.18 Dr. Bishai failed to discuss how this preexisting condition had progressed beyond
what might be expected from the natural progression of that condition.19 Moreover, the Board
has held that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without adequate rationale, to establish causal
relationship.20 While Dr. Bishai generally stated that the June 7, 2013 employment incident was
causally related to appellant’s diagnosed conditions, his opinion was vague and speculative and
provided no explanation pertaining to the mechanism of injury. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.21 The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record, and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.22 Without explaining how the employment incident caused or contributed to the

14

Supra note 12.

15

Supra note 11.

16

S.R., Docket No. 12-1098 (issued September 19, 2012).

17

M.R., Docket No. 14-11 (issued August 27, 2014).

18

K.P., Docket No. 14-1330 (issued October 17, 2014).

19

R.E., Docket No. 14-868 (issued September 24, 2014).

20

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

21

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

22

See Lee R. Haywood, 48 ECAB 145 (1996).

8

diagnosed conditions, Dr. Bishai’s opinion is of limited probative value and insufficient to meet
appellant’s burden of proof.23
The remaining medical evidence is also insufficient to support appellant’s claim. While
Dr. Timken’s reports provide diagnostic findings, they are of limited probative value as they
failed to provide any opinion on the cause of appellant’s injury.24 Ms. McCullough’s June 21,
2013 report is also insufficient to establish appellant’s claim as it was not signed by a physician.
Registered nurses, physical therapists, and physician assistants are not physicians as defined
under FECA and their opinions are, therefore, of no probative value.25 The Board has held that
pain is a description of a symptom rather than a clear diagnosis of the medical condition.26
The Board further notes that OWCP asserted that the diagnoses provided in Dr. Bishai’s
June 5, 2014 report were contradicted by the bill he submitted for lumbar strain ICD9 847.2.
Dr. Bishai’s June 5, 2014 report stated that appellant’s claim was accepted for lumbar strain but
that his conditions were actually greater. The record reveals that the ICD9 code 847.2 was
entered into the case record for lumbar strain. However, the record does not contain a decision
accepting appellant’s traumatic injury claim for this condition.27 If OWCP had authorized
payment for this condition, this does not itself establish that the condition is employment
related.28 The Board has held that OWCP’s gratuitous payment of a medical bill, without more,
does not constitute formal acceptance of a claim for injury.29
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

23

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
24

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

25

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
26

It is not possible to establish the cause of a medical condition, if the physician has not stated a diagnosis, but
only notes pain. T.G., Docket No. 13-76 (issued March 22, 2013); C.F., Docket No. 08-1102 (issued
October 10, 2008).
27

S.A., Docket No. 11-286 (issued August 16, 2011).

28

See Glen E. Shriner, 53 ECAB 165, 169 (2001).

29

See M.C., Docket No. 12-64 (issued May 10, 2012); Gary L. Whitmore, 43 ECAB 441 (1993) (where the Board
found that payment of compensation by OWCP does not in and of itself, constitute acceptance of a particular
condition or disability in absence of evidence from OWCP indicating that a particular condition or disability has
been accepted as work related).

9

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
lumbar injury is causally related to the June 7, 2013 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 15 and July 14, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Plainfield, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1363
Issued: February 14, 2018

Case Submitted on the Record

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

JURISDICTION
On June 2, 2017 appellant filed a timely appeal from a January 11, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury
causally related to the accepted March 13, 2013 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. In an order dated August 8, 2016, the
Board remanded the case for OWCP to consolidate appellant’s right upper extremity claims.2
1

5 U.S.C. § 8101 et seq.

2

Order Remanding Case, Docket No. 16-1046 (issued August 8, 2016).

The facts and circumstances as set forth in the Board’s prior order are incorporated herein by
reference. The relevant facts are as follows.
On March 25, 2013 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 13, 2013 she experienced pain in her right arm, right
hand, and upper chest by the collar bone. The pain began while she was casing mail and spread
down her arm. Appellant told her supervisor that she had chest pain and needed to go home.
The employing establishment controverted the claim, noting that she became upset when she
found out she could not leave early.3
OWCP previously accepted that appellant sustained a right shoulder strain on January 28,
2003, under File No. xxxxxx908. It also accepted her 2007 occupational disease claim for a
sprain of the right shoulder and upper arm, under File No. xxxxxx856. Appellant further filed an
occupational disease claim on June 10, 2013 for myofascitis, cervical radiculitis, and
scapulothoracic dysfunction, under File No. xxxxxx810 and denied in decisions dated
September 30, 2013 and May 28, 2014.
On March 13, 2013 Dr. Ajay Kumar, a Board-certified physiatrist, indicated that
appellant could not work for one week due to cervical radiculopathy.4 In a March 18, 2013
disability certificate, he diagnosed right upper extremity pain and advised her not to work
pending further examination. On April 2, 2013 a provider in the same office released appellant
to return to work on April 8, 2013 without limitations.5
Dr. Mark A.P. Filippone, a Board-certified physiatrist, evaluated appellant on
April 5, 2013. He reviewed her description of the March 13, 2013 work incident and noted that a
March 22, 2013 magnetic resonance imaging (MRI) scan study of the right shoulder showed
prior acromioclavicular joint surgery and possible mild cuff tendinopathy and that a March 22,
2013 cervical MRI scan study showed a bulging C5-6 disc with a possible herniation. On
examination, Dr. Filippone found a positive Tinel’s sign over the right ulnar nerve and a positive
Phalen’s test on the right, and a loss of sensation over the left forearm. He diagnosed cervicalgia
with radiculitis, internal derangement of the right shoulder, costochondritis, and possible cervical
radiculopathy, ulnar neuropathy, and carpal tunnel syndrome. Dr. Filippone opined that
appellant was totally disabled. In an April 5, 2013 attending physician’s report (Form CA-20),
he diagnosed internal derangement of the right shoulder and cervical radiculopathy.
Dr. Filippone checked a box marked “yes” that the condition was caused or aggravated by her
federal employment duties. He also completed a duty status report (Form CA-17) on April 5,
2013, finding that appellant was totally disabled.
On April 16, 2013 Dr. Filippone discussed appellant’s complaints of “right shoulder and
neck pain radiating into the right upper extremity” and unusual sensation in the left hand due to
overuse. He found her totally disabled. Dr. Filippone, in an accompanying Form CA-20,
3

The employing establishment submitted witness statements regarding the events on the workroom floor on
March 13, 2013.
4

The record contains the first page only of an authorization for examination and/or treatment, Form CA-16.

5

The names of these providers are not legible.

2

diagnosed internal derangement of the right shoulder and possible cervical radiculopathy and
double crush syndrome. He checked a box marked “yes” that the condition was caused or
aggravated by employment and found that appellant was totally disabled.6
Appellant, in an April 18, 2013 statement, noted having right upper chest pain radiating
to her arms casing mail. She specified that her claim was for a traumatic injury.
By decision dated May 14, 2013, OWCP denied appellant’s traumatic injury claim. It
found that the medical evidence was insufficient to show that she sustained a diagnosed
condition causally related to the accepted March 13, 2013 work incident.
In a progress report dated May 7, 2013, received by OWCP on May 28, 2013,
Dr. Filippone discussed appellant’s symptoms of cervical paraspinal and right upper trapezius
pain. He provided findings and opined that she was totally disabled. Dr. Filippone submitted
similar progress reports from May 16 to October 23, 2013. On May 16, 2013 he found pain,
guarding, and spasm in the cervical paraspinals and about the shoulders. Dr. Filippone advised
that appellant’s symptoms were directly and solely the result of repetitive activities while at work
at the employing establishment.
He also completed CA-20 forms dated May 7 to
October 29, 2013. In the form reports, Dr. Filippone diagnosed internal derangement of the right
shoulder and possible cervical radiculopathy and cervical double crush syndrome. He checked a
box marked “yes” that the condition was caused or aggravated by employment, and found
appellant totally disabled.
By decision dated December 9, 2013, OWCP’s hearing representative affirmed the
May 14, 2013 decision. She found that appellant had established the identified work factor of
casing mail on March 13, 2013, but that the medical evidence of record did not establish that she
had a diagnosed condition as a result of the work duties. The hearing representative reviewed
evidence from appellant’s other right arm files, assigned OWCP File Nos. xxxxxx908 and
xxxxxx856.
On July 7, 2014 Dr. Filippone related treating appellant since April 5, 2013 for a
March 13, 2013 cervical and right shoulder injury that occurred at work. He described her
continued complaints of neck pain primarily on the right and chest wall and right shoulder pain
after the March 13, 2013 incident. Dr. Filippone discussed appellant’s history of right shoulder
surgery in September 2005 with residual problems that increased after March 13, 2013, and a
trapezius strain due to a work injury in 2011. He advised that a March 8, 2014 cervical spine
MRI scan showed a disc herniation at C5-6 with mild thecal sac compression and a March 6,
2014 electromyogram and nerve conduction velocity revealed cervical radiculopathy at C5-6 and
bilateral carpal tunnel syndrome, especially on the left. Dr. Filippone diagnosed right shoulder
internal derangement, a C5-6 disc herniation, and cervical radiculopathy. He found appellant
totally disabled. Dr. Filippone related that it was within reasonably medical probability that the
aforementioned abnormalities are directly and solely the result of injuries sustained while at
work for the employing establishment on March 13, 2013 as stated in appellant’s statement of
April 5, 2013.
6

Dr. Filippone submitted similar form reports dated May 7, 2013.

3

In CA-20 forms dated December 5, 2013 to December 17, 2014, Dr. Filippone diagnosed
internal derangement of the right shoulder and ruled out cervical radiculopathy and cervical
double crush syndrome. He checked a box marked “yes” that the condition was caused or
aggravated by employment and found appellant totally disabled.
On November 12, 2014 appellant, through then counsel, requested reconsideration.
Counsel indicated that he was submitting a December 9, 2013 report from Dr. Filippone.
By decision dated January 20, 2015, OWCP denied modification of its December 9, 2013
decision. It noted that it had not received a report from Dr. Filippone dated December 9, 2013.
In a progress report dated December 17, 2014, received by OWCP on February 5, 2015,
Dr. Filippone described findings on examination and opined that appellant remained totally
disabled.
He provided similar progress reports on April 21, September 25, and
November 13, 2015.
Dr. Filippone, on February 13, 2015, reviewed OWCP’s January 20, 2015 decision. He
related that at the time of his initial April 5, 2013 evaluation appellant had described her work
duties, which included repetitive use of the right upper extremity. Dr. Filippone diagnosed right
internal shoulder derangement, costochondritis, and tendinitis, noting that each condition was
most frequently caused by overuse or over-extension, particularly when the activities are
overhead. He attributed the diagnosed conditions to the repeated factors of appellant’s
employment and related that all of her present symptoms are directly and solely the result of the
injuries sustained while at work for the employing establishment.
In a June 24, 2015 report, Dr. Filippone again described appellant’s work duties,
indicating that they required repeated use of the right arm. He diagnosed right shoulder internal
derangement, costochondritis, and tendinitis due to overuse and overhead work. Dr. Filippone
opined that employment factors caused the conditions based on objective findings and as the
pathology of these conditions is so reminiscent of appellant’s daily activities. He completed CA20 forms dated February 13 through June 24, 2015. Dr. Filippone diagnosed right shoulder
internal displacement, checked a box marked “yes” that the condition was employment related,
and indicated that appellant was totally disabled.
OWCP, by decision dated January 28, 2016, denied modification of its January 20, 2015
decision. It noted that Dr. Filippone attributed appellant’s condition to her work duties rather
than events on March 13, 2013. OWCP noted that she had filed an occupational disease claim,
assigned File No. xxxxxx810, alleging that her employment caused problems with her neck,
shoulder, hands, and arm, which it had formally denied.
Appellant appealed to the Board. By August 8, 2016 order, the Board set aside the
January 28, 2016 decision.7 The Board noted that OWCP had referenced evidence not contained
in the record before the Board. The Board remanded the case for OWCP to administratively
combine the case records for File Nos. xxxxxx801, xxxxxx908, and xxxxxx856 and, after any
required development, issue an appropriate decision.
7

See supra note 2.

4

On remand, OWCP combined the case records. By letter dated October 17, 2016, it
requested that Dr. Filippone submit a reasoned report addressing whether the March 13, 2013
work incident caused or aggravated a diagnosed condition.
In a June 15, 2016 report, Dr. Filippone noted findings and discussed appellant’s
complaints of right shoulder pain. He related, “[Appellant] remains totally disabled and despite
not working and modifying her activities of daily living, she is still symptomatic. She still has
right shoulder pain, right forearm pain, and right knee pain.” Dr. Filippone indicated that
appellant had to stop work March 13, 2013, but could resume limited-duty work on
June 21, 2016.
By decision dated January 11, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she had not submitted evidence supporting that she sustained a diagnosed condition
due to the accepted March 13, 2013 work incident while casing mail.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while 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.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether fact of injury has been established. First, an employee has
the burden of proof to demonstrate the occurrence of an injury at the time and place, and in the
manner alleged, by a preponderance of the reliable, probative, and substantial evidence.11
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed.12 An employee may establish
that the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.13

8

Supra note 1.

9

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

10

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

11

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

12

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

13

Id.

5

ANALYSIS
Appellant alleged an injury to her right upper chest, right arm, and right hand on
March 13, 2013 after casing mail. She has established that the March 13, 2013 incident occurred
as alleged. The issue, consequently, is whether the medical evidence of record is sufficient to
establish an injury as a result of this accepted employment incident. The Board finds that
appellant has not established that the March 13, 2013 employment incident resulted in an injury.
The determination of whether an employment incident caused an injury is generally established
by medical evidence.14
Dr. Kumar, on March 13, 2013, advised that appellant was unable to work for one week
due to cervical radiculopathy. He, however, did not address causation. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.15
Dr. Filippone provided several reports addressing causal relationship. On July 7, 2014 he
discussed appellant’s treatment since April 2013 for a March 13, 2013 injury to the neck and
right shoulder. Dr. Filippone diagnosed internal derangement of the right shoulder, a C5-6 disc
herniation, and cervical radiculopathy and found that appellant was totally disabled. He
attributed the disabling conditions to the March 13, 2013 work injury. Dr. Filippone, however,
did not provide any rationale for his opinion. Medical conclusions unsupported by rationale are
of diminished probative value.16 Such rationale is particularly important given appellant’s
history of preexisting shoulder and trapezius conditions.17
On February 13, 2015 Dr. Filippone reviewed appellant’s work duties, which he noted
required repetitive right arm use and overhead work. He diagnosed right internal shoulder
derangement, costochondritis, and tendinitis. Dr. Filippone indicated that the diagnosed
conditions resulted from overuse, especially with overhead activities. He related the conditions
to repeated factors of employment and injuries sustained at the employing establishment. On
June 24, 2015 Dr. Filippone also attributed the diagnosed conditions to overuse and overhead
work while performing repetitive work duties encountered in daily activities. He did not relate
any condition to the work events of March 13, 2013. A physician must provide a narrative
description of the identified employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
condition.18 Instead, Dr. Filippone appeared to find that work factors over time caused the

14

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

15

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

16

See Jacquelyn L. Oliver, 48 ECAB 232 (1996).

17

See E.D., Docket No. 16-1854 (issued March 3, 2017).

18

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

6

diagnosed conditions. Consequently, his opinion in these reports does not support appellant’s
traumatic injury claim.19
OWCP, by letter dated October 17, 2016, requested that Dr. Filippone provide a reasoned
opinion regarding whether appellant sustained an injury as a result of work factors occurring on
March 13, 2013. In a June 15, 2016 response, Dr. Filippone advised that she continued to have
right shoulder, right forearm, and right knee pain. He discussed the findings and noted that
appellant had symptoms despite not working. Dr. Filippone found that appellant had to stop
work on March 13, 2013, but could return to limited duty on June 21, 2016. He did not provide a
reasoned opinion, as requested, explaining whether work events on March 13, 2013 caused or
aggravated a diagnosed condition, and consequently his opinion is of little probative value.20
Appellant also provided various form reports from Dr. Filippone covering the period
April 5, 2013 to June 24, 2015. In these reports, Dr. Filippone offered diagnoses and indicated
by checking a box marked “yes” that the diagnosed conditions were caused or aggravated by
employment. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking a box marked “yes” to a form question, without
explanation or rationale, that opinion has little probative value and is insufficient to establish a
claim.21 Other reports from Dr. Filippone are of limited probative value and insufficient to
establish the claim because the physician did not specifically address whether the March 13,
2013 employment incident caused the diagnosed conditions.22
Appellant also provided reports from healthcare providers with illegible signatures.
Medical opinions, in general, can only be given by a qualified physician.23 A report that is
unsigned or bears an illegible signature lacks proper identification and cannot be considered
probative medical evidence.24
In order to establish causal relationship, a physician must provide an opinion that the
condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale, and be
based upon a complete and accurate medical and factual background of the claimant.25
A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
19

20

See supra notes 16 and 17.

21

See Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

22

See supra note 15.

E.K., Docket No. 09-1827 (issued April 21, 2010); see 5 U.S.C. § 8101(2) (defines the term “physician” to
include surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law).
23

24

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

25

See J.W., Docket No. 17-0870 (issued July 12, 2017).

7

Appellant has not submitted a medical report sufficient to show a diagnosed condition causally
related to the March 13, 2013 employment incident, and thus did not meet her burden of proof.
On appeal appellant argues that OWCP erred in considering the claim as a traumatic
injury rather than an occupational disease. She maintains that it should have converted the claim
to an occupational disease in accordance with its procedures. Appellant, however, specified in
response to OWCP’s initial development letter that she was claiming a traumatic injury on
March 13, 2013.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted March 13, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2018
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 09-171
Issued: July 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 22, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated October 1, 2008 in which an Office hearing
representative affirmed the denial of her claim for compensation. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury causally related to factors of her federal employment.
FACTUAL HISTORY
On January 29, 2008 appellant, then a 53-year-old clerk, filed an occupational disease
claim alleging that her cervical spine osteophytes and central canal stenosis was caused or
aggravated by her employment duties. She was required to lift, throw and carry heavy parcels
and bundles of mail trays and work 10 hours “NPS” for the prior years for six days a week.
Appellant first became aware of her condition on September 10, 2007 and that it was caused or

aggravated by her employment on September 17, 2007. She related that approximately 10 years
prior she sustained a muscle sprain on the right side of her neck. Appellant was recently off
work for three months recovering from a July 2, 2007 foot surgery. During the time she was off,
she started to experience her neck and upper back symptoms. The employing establishment
controverted the claim.
A September 14, 2007 magnetic resonance imaging (MRI) scan of the thoracic spine
reported a mild central canal stenosis, mild to moderate right neural foraminal narrowing and
moderate left neural foraminal narrowing at C7-T1. A September 28, 2007 electromyogram
(EMG) reported a mild C8 or T1 radiculopathy on the left but no evidence of cubital and/or
carpal tunnel syndrome.
In an October 30, 2007 report, Dr. Phillip Kissel, a Board-certified neurosurgeon,
examined appellant for neck pain and resolving left upper extremity weakness. Appellant
reported no significant neck problem until she underwent bunion surgery on August 15, 2007.
She indicated that, following the removal of the lower extremity cast, she felt that there was
coincidental onset of neck pain. Dr. Kissel noted appellant’s medical treatment and that she had
not worked since July 2, 2007. He also noted that she had a neck flare with right upper extremity
weakness 10 years ago that resolved. Dr. Kissel provided findings on examination and his
review of the diagnostic testing. An impression of C6-7 autofusion and C5-6 and C7-T1
moderate spondylostenosis with resolved left upper extremity radiculopathy was provided.
Dr. Kissel recommended that appellant continue conservative management and temporary
disability as outlined by Dr. Allan Moelleken, an orthopedic surgeon.
Appellant also included an October 15, 2007 statement from The Spine Center regarding
a cervical injection; an October 19, 2007 note which excused her from work for one month and a
November 20, 2007 return to work report from Dr. James B. Carr, an orthopedic surgeon. In a
January 30, 2008 duty status report, an unidentified healthcare provider noted a diagnosis of
cervical radiculopathy and advised that appellant could resume work January 30, 2008 with
restrictions on lifting.
In a February 1, 2008 letter, the employing establishment controverted the claim on the
grounds that appellant’s neck problems arose when she was not working. In a February 3, 2008
letter, Postmaster Jack Bishop advised that she was a part-time flexible sales service associate
and distribution clerk whose job consisted of carrying, lifting and grasping mail; pushing and
rolling equipment into the building; placing flats onto and off rolling equipment and into
containers and carrier cases; working at the window performing sales associate duties; and
performing some administrative work. He indicated that appellant never reported neck problems
before she stopped working for her bunion surgery.
By letter dated March 6, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence,
including a comprehensive medical report from a treating physician, which provided an opinion,
with medical reasons, on the cause of her cervical spine, neck condition and its relationship to
her federal employment.

2

In a March 17, 2008 statement, appellant indicated that she first sought treatment for her
neck on August 7, 2007 from Dr. Hixson, a chiropractor; however, his treatment did not help.
Dr. Hixson sent her for x-rays on September 10, 2007 and on September 17, 2007 she saw
Dr. Moelleken, who prescribed physical therapy and two epidural in action. Appellant indicated
that she did not sustain any new injury between the date of injury and the date she reported it.
She reiterated that she was at home recuperating from her foot surgery when her neck and back
became an issue. Appellant had previously seen Dr. Hixson for back adjustments for two years
“depending on my workload. If I pulled a muscle or my back went out of alignment I would
make an appointment with Dr. Hixson.” She also indicated that the two foot trays she worked on
weighed 20 pounds when full as opposed to the 5 to 10 pounds she originally thought. No new
medical evidence was submitted.
By decision dated April 17, 2008, the Office denied appellant’s claim on the grounds that
she had not established a causal relationship between her cervical spine condition and her
employment activities.
On April 22, 2006 appellant, through her attorney, requested a telephonic hearing, which
was held on August 11, 2008. At the hearing, she was given 30 days to submit a written
response to Postmaster Bishop’s description of her job duties and to provide medical records
containing a physician’s medical explanation of how and why her cervical stenosis and
osteophytes were causally related to her employment. No additional evidence was received.
By decision dated October 1, 2008, an Office hearing representative affirmed the
April 17, 2008 decision finding that the factual and medical evidence was insufficient establish
appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her 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 and/or specific condition for which
compensation is claimed are causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.3
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Michael R. Shaffer, 55 ECAB 386 (2004); see also Solomon Polen, 51 ECAB 341, 343 (2000).

3

The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, 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.4
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.5
ANALYSIS
The medical evidence submitted by appellant is insufficient to establish that her cervical
spine condition was caused or aggravated by factors of her federal employment. Therefore,
appellant has failed to meet her burden of proof to establish her occupational disease claim.6
The September 2007 MRI scan report of appellant’s thoracic spine, listed a diagnosis of
stenosis and foraminal narrowing at C7. The September 2007 EMG report did not contain an
opinion regarding the cause of the diagnosed mild C8 or T1 radiculopathy. Dr. Kissel provided
an impression of C6-7 autofusion and C5-6 and C7-T1 moderate spondylostenosis with resolved
left upper extremity radiculopathy without offering any opinion on causation. Other reports of
record, including Dr. Carr’s November 20, 2007 return to work report, did not address the cause
of appellant’s condition. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.7 In a
January 30, 2008 report, an unidentified healthcare provider diagnosed cervical radiculopathy,
but failed to offer an opinion on causation. However, this report cannot be considered competent
medical evidence as the record does not show that the report was signed by a physician.8
Consequently, these reports are insufficient to meet appellant’s burden of proof.
Appellant expressed her belief that her neck condition resulted from her federal duties.
However, 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
4

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

5

Phillip L. Barnes, 55 ECAB 426 (2004).

6

While the employing establishment appears to be contesting certain of appellant’s actual job duties, the Board
notes that no dispute exists as to whether she had performed the duties claimed on her CA-2 form. Thus, the
evidence establishes that appellant performed these duties.
7

Willie Miller, 53 ECAB 697 (2002).

8

See 5 U.S.C. § 8101(2). See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical
form reports with illegible signatures did not constitute competent medical evidence).
9

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

4

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 is appellant’s responsibility to submit. Therefore, appellant’s belief that her condition was
caused by conditions of employment is not determinative.
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed cervical conditions was caused or aggravated by her employment, she has not met her
burden of proof to establish that she sustained an occupational disease in the performance of duty
causally related to factors of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2008 is affirmed.
Issued: July 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Beach Haven, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1770
Issued: February 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a May 10, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition with secondary cardiomyopathy in the performance of duty.
FACTUAL HISTORY
On January 14, 2017 appellant, then a retired former postmaster, filed an occupational
disease claim (Form CA-2) alleging that work stress prior to her retirement on December 31,
2013 caused Takotsubo’s cardiomyopathy and a severe myocardial infarction on
1

5 U.S.C. § 8101 et seq.

January 25, 2016. She asserted that she underwent treatment for stress during the final years of
her employment. Appellant contended that an attending physician told her that work stress was
the primary cause of her cardiac condition. She noted that she first became aware of her heart
condition on January 25, 2016 and first related it to factors of her federal employment on
January 4, 2017.
In a January 26, 2017 letter, OWCP notified appellant of the type of additional evidence
needed to establish her claim, including a detailed description of the work factors alleged to have
caused or contributed to her condition, and a narrative medical report from her attending
physician supporting a causal relationship between those incidents and the claimed conditions. It
attached a claim development questionnaire and afforded her 30 days in which to submit such
evidence.
In response, appellant submitted her January 30 and February 2 and 29, 2017 narrative
statements, in which she contended that the employing establishment was aware of her stress
condition before her retirement as she had been granted Family and Medical Leave Act (FMLA)
leave in 2011.2 She alleged that she developed an emotional condition due to being on call 24
hours a day 7 days a week, participation in daily early morning teleconferences while still at
home, and short staffing during peak seasonal periods. Appellant contended that the employing
establishment had removed her from her position and placed her in an improvement program,
where she was subjected to surprise audits and humiliating treatment. She recalled that during
the week prior to the January 25, 2016 cardiac event, she had shoveled snow and chopped wood.
An employing establishment supervisor provided a January 25, 2017 statement
acknowledging that, while postmaster positions were stressful, he had not supervised appellant
and was unfamiliar with the details of her situation.
Appellant also submitted medical evidence. In a June 24, 2011 FMLA certification form,
Dr. Herbert J. Rudolph, an attending family practitioner, diagnosed an acute stress reaction with
anxiety, insomnia, nausea, apprehension, shortness of breath, and lightheadedness. He held
appellant off work from August 3 to 31, 2011 as she required rest and medication. Dr. Rudolph
later held her off work through September 29, 2011.
Appellant provided hospital chart notes dated January 25 to 28, 2016 which described her
evaluation in an emergency room and a specialized medical center for chest pain. She underwent
a cardiac catheterization performed by Dr. Arthur Okere, an attending Board-certified
cardiologist. Appellant was diagnosed with Takotsubo’s cardiomyopathy. Dr. Okere provided
periodic progress reports.3 In a January 27, 2017 note, he explained that “Takotsubo is a stressinduced cardiomyopathy.”

2
The employing establishment approved appellant’s request for FMLA leave on August 11, 2011. Appellant
used FMLA leave for unspecified periods beginning March 29 and May 23, 2011, August 3 to September 29, 2011,
October 15 to 30, 2011, and May 22 to June 5, 2012.
3
An October 3, 2016 echocardiogram showed concentric hypertrophy of the left ventricle, mild dilation of the
left atrial cavity, mild mitral valve regurgitation, and trace regurgitation in the tricuspid and pulmonic valves.

2

By decision dated May 10, 2017, OWCP denied appellant’s emotional condition claim,
as she failed to submit sufficient evidence to establish fact of injury. It found that, while she
made general allegations about stress and overwork, she did not specify any dates or describe
any incidents which she believed caused or contributed to her condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Appellant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.6 This burden of proof includes the submission of a
detailed description of the employment factors or conditions which she believes caused or
adversely affected the condition or conditions for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician, when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.9

4

Supra note 1.

5

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
6

Pamela R. Rice, 38 ECAB 838, 841 (1987).

7

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993).

9

Lori A. Facey, 55 ECAB217 (2004); Norma L. Blank, id.

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition with secondary cardiomyopathy in the performance of duty.
Appellant attributed her stress condition, in part, to early morning conference calls, being
on call at all times. As she did not submit a descriptive statement or corroborating evidence to
establish that these incidents occurred as alleged, these alleged incidents cannot be considered
factors under Cutler.10 Similarly, appellant contended that administrative matters such as short
staffing and audits also contributed to her condition, but failed to provide any factual evidence to
substantiate these incidents or that they were carried out in error.11 She submitted no evidence to
support her allegations.
Therefore, the Board finds that there is insufficient evidence to establish that the
identified incidents occurred as alleged. Appellant submitted no evidence, such as personnel
records or witness statements, corroborating her version of events. OWCP, by letter dated
January 26, 2017, informed her of the evidence needed to support her claim. It asked that
appellant respond to a claim development questionnaire describing any employment factors or
incidents alleged to have caused her emotional condition. In response, appellant provided
statements with vague allegations that lacked the specificity needed to establish her allegations
as factual.12
For the foregoing reasons, the Board finds that appellant has not established any
compensable employment factors. Therefore, appellant has not met her burden of proof. As she
did not establish a compensable employment factor, the Board need not consider the medical
evidence of record.13
On appeal, appellant asserts that she sustained cardiomyopathy due to an occupational
emotional condition. As explained above, she did not submit sufficient factual evidence to
establish an emotional condition in the performance of duty.
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.

10

See supra note 5; James E. Norris, 52 ECAB 93 (2000).

11

See Edwards, supra note 8 (administrative and personnel matters, although generally related to employment,
are functions of the employing establishment rather than the regular or specially assigned work duties of the
employee and are not covered under FECA unless the evidence discloses error or abuse on the part of the employing
establishment).
12

L.G., Docket No. 17-0160 (issued May 1, 2017).

13

See Katherine A. Berg, 54 ECAB 262 (2002).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition with secondary cardiomyopathy in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2017 is affirmed.
Issued: February 1, 2018
Washington, DC

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

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

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

5