United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Philadelphia, PA, Employer
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___________________________________________ )
D.C., Appellant

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

Docket No. 06-2039
Issued: March 9, 2007

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 September 5, 2006 appellant filed a timely appeal from March 15 and May 15, 2006
decisions of the Office of Workers’ Compensation Programs, which denied her claims of
continuing disability and for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues on appeal are whether: (1) appellant met her burden of proof to establish that
she had any disability after August 22, 2003 causally related to the February 3, 1979
employment injury; and (2) whether the Office properly denied appellant’s claim for a schedule
award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a September 15, 2005
decision, the Board affirmed the May 2, 2005 decision of the Office hearing representative,
1

Docket No. 05-1178 (issued September 15, 2005). Appellant claim was accepted for bilateral carpal tunnel

finding that the Office properly terminated appellant’s compensation benefits effective
August 22, 2003. The Board also found that appellant did not meet her burden of proof to
establish that she had any disability after August 22, 2003 causally related to the February 3,
1979 employment injury. The facts and the history contained in the prior appeal are incorporated
by reference.
By letter dated January 17, 2006, appellant’s representative requested reconsideration.
Appellant submitted a December 15, 2005 report from Dr. Michael A. Taormina, a Boardcertified neurologist, who noted that nerve conduction studies of the ulnar motor and sensory
nerves were normal. Dr. Taormina also indicated that studies of the bilateral median, sensory
and motor nerves demonstrated prolonged latencies and that the electromyography (EMG) scan
needle examination was normal. He diagnosed bilateral carpal tunnel syndrome. On
examination, appellant demonstrated a good range of motion of the hands and fingers, normal
strength except for mild left abductor pollicis brevis weakness, two point pin testing, which was
consistent with 7 millimeters (mm) loss in the left median digit number two and 12 mm loss in
the right hand at digit number two and thumb. Based upon the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides) (5th ed. 2001), appellant
had a whole person rating of 26 percent. Dr. Taormina noted that he had referred to Tables 16-3,
16-10 and 16-15 and the Combined Values Chart of the A.M.A., Guides.
By letter dated February 1, 2006, appellant submitted a CA-7 form claim for a schedule
award.
By decision dated March 15, 2006, the Office denied modification of its prior decision.
The Office found that the evidence of Dr. Taormina was insufficient to create a conflict with the
report of Dr. Richard Mandel, a second opinion Board-certified orthopedic surgeon. The Office
further found that the evidence was insufficient to support a schedule award as the effects of
appellant’s accepted work-related injury had been established to have resolved.
In a February 9, 2006 report, Dr. Nicholas P. Diamond, an osteopath, noted appellant’s
history of injury and treatment, including an EMG scan from April 7, 2003. He also advised that
appellant had nonwork-related diabetes mellitus, cancer and thyroid disease. Dr. Diamond
indicated that appellant had complaints of pain, numbness and tingling in her hands, which was
greater on the left and which increased with changes in weather and activity. Appellant denied
having any prior pain which affected her activities of daily living and described how her
activities of daily living were now being affected. Dr. Diamond noted that appellant related that
she had difficulty performing household duties such as cooking, dishwashing, vacuuming,
cleaning, doing laundry and shopping. He also noted that appellant indicated that she had
difficulty with personal care such as washing and dressing herself, styling her hair and brushing
her teeth. In addition, Dr. Diamond advised that appellant had difficulty with sleeping, lifting,
grasping, pulling, pushing, fine dexterity and had decreased grip strength and clumsiness in both
hands. Furthermore, he utilized the Visual Analogue Scale and explained that appellant had
pain, which was at a level of 5 to 8 out of 10 on the right hand and 6 to 8 out of 10 on the left
hand. Dr. Diamond conducted a physical examination of both wrists and explained that
syndrome for which she underwent surgical release of both wrists.

2

appellant had a well-healed midpalmar surgical scar, thenar atrophy, palmar tenderness, a
positive Tinel’s sign, one-minute Phalen’s test and carpal compression test. Regarding range of
motion, he indicated that dorsiflexion was the same for both wrists, which equated to 0 to 65
degrees out of 75 degrees. For palmar flexion, Dr. Diamond noted that appellant had 0 to 65
degrees out of 75 degrees on the right and 0 to 60 degrees out of 75 degrees on the left. For
radial deviation, he noted that appellant had 0 to 20 degrees out of 20 degrees on both the right
and left wrists. Dr. Diamond also found that, for ulnar deviation, appellant had 0 to 25 degrees
out of 35 degrees on both wrists. He performed grip strength testing with a Jamar hand
dynamometer, as well as pinch testing. Dr. Diamond diagnosed cumulative and repetitive
trauma disorder, bilateral carpal tunnel syndrome, post right carpal tunnel syndrome and post left
carpal tunnel release and recurrent bilateral carpal tunnel syndrome. He opined that appellant
had a left pinch deficit of 20 percent pursuant to Table 16-34,2 a Grade 2 sensory deficit of the
left median nerve of 31 percent,3 which when combined was equal to 45 percent of the left upper
extremity. Dr. Diamond noted that appellant had a Grade 2 sensory deficit of the right median
nerve of 10 percent4 and a total right upper extremity impairment of 10 percent. He opined that
appellant reached maximum medical improvement on February 9, 2006.
Furthermore,
Dr. Diamond opined that the “work-related injury was the competent producing factor for
[appellant’s] subjective and objective findings of today.”
By decision dated May 9, 2006, the Office denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.5
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the appellant, must be

2

A.M.A., Guides 509, Table 16-34.

3

Id. at 482, Table 16-10; Id. at 492, Table 16-15.

4

Id.

5

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

3

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 appellant.6
ANALYSIS -- ISSUE 1
Following the termination of compensation, appellant submitted additional medical
evidence, which included a December 15, 2005 report, from Dr. Taormina. In his report,
Dr. Taormina noted that the diagnostic studies were normal and diagnosed bilateral carpal tunnel
syndrome. He opined that appellant had a whole person disability rating of 26 percent.
However, Dr. Taormina did not provide a rationalized discussion that would overcome or create
a conflict with the report of the second opinion physician, Dr. Mandel, a Board-certified
orthopedic surgeon, who the Office relied upon in terminating appellant’s compensation.
Dr. Mandel was found to have provided a well-rationalized opinion based upon a complete and
accurate factual and medical history. Where the Office meets its burden of proof in justifying
termination of compensation benefits, the burden is on the claimant to establish that any
subsequent disability is causally related to the accepted employment injury.7 Dr. Taormina did
not provide any discussion or provide any indication that he was aware of an employment-related
injury. Thus, his report is of little probative value.8
In a February 9, 2006 report, Dr. Diamond, an osteopath, noted appellant’s history of
injury and treatment and her nonwork-related diabetes mellitus, cancer and thyroid disease. He
concluded that appellant’s “work-related injury was the competent producing factor for
[appellant’s] subjective and objective findings of today.” Dr. Diamond noted that his findings
included complaints of pain, numbness and tingling in her hands and that appellant related that
she had difficulty performing household duties and with personal care as well as sleeping, lifting,
grasping, pulling, pushing, fine dexterity and had decreased grip strength and clumsiness in both
hands. However, he did not provide any information to suggest that he was aware of the
activities that appellant was performing in her actual position as a clerk. Furthermore,
Dr. Diamond did not provide any information to suggest what activities appellant was
performing after she retired on March 31, 2003. He did not provide any medical rationale to
support his own opinion that appellant’s condition was related to her employment factors.9
Dr. Diamond also indicated that appellant was suffering in her activities of daily living and
described those activities which were affected noting that she denied having any prior pain which
affected her activities of daily living. The Board has found that because an employee is
asymptomatic before an employment injury is insufficient without supporting medical rationale

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

8

The medical opinion to establish a claim 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. Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket
No. 05-715, issued October 6, 2005).
9

Id.

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to establish causal relationship.10 The Board finds that this report is not sufficient to overcome
the weight of Dr. Mandel’s opinion or to create a conflict in medical opinion.
Thus, the additional reports subsequent to the termination of appellant’s compensation
are insufficient to establish an ongoing condition and disability causally related to the work
injury of February 3, 1979. Neither physician provided findings and rationale sufficient to
overcome or create a conflict with the opinion of Dr. Mandel.
Consequently, appellant has not established that her condition on and after August 22,
2003 was causally related to her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Federal Employees’ Compensation Act11 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.12 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.13 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.14
ANALYSIS -- ISSUE 2
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the fifth edition of the A.M.A., Guides.
In support of her request for a schedule award, appellant submitted the reports of
Dr. Taormina and Dr. Diamond. However, these reports are insufficient to support her claim for
a schedule award for impairment caused by her accepted employment condition. This is
especially true in light of Dr. Mandel’s well-rationalized report, which indicated that appellant’s
accepted conditions had resolved without residuals. Neither physician explained why appellant’s
resolved bilateral carpal tunnel syndrome would have caused a permanent impairment pursuant
to the A.M.A, Guides.
For example, Dr. Taormina in his December 15, 2005 report merely provided his
examination findings, which appeared to be normal. He opined that appellant had 26 percent
whole person impairment. The Act, however, does not provide a schedule award based on whole

10

Thomas Petrylak, 39 ECAB 276 (1987).

11

5 U.S.C. §§ 8101-8193.

12

5 U.S.C. § 8107.

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

20 C.F.R. § 10.404.

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person impairments.15 Additionally, Dr. Taormina did not explain how any impairment of a
schedule member was due to appellant’s accepted condition.
Dr. Diamond’s report of February 9, 2006 is also insufficient. He concluded that
appellant’s “work-related injury was the competent producing factor for [appellant’s] subjective
and objective findings of today.” While Dr. Diamond provided findings for pain and noted that
appellant had difficulties with her activities of daily living, he did not explain the disparity in his
findings with those of Dr. Mandel who found no continuing work-related residuals. He did not
provide any rationale to support his own opinion that appellant had permanent impairment
related to her employment injury16 which, as noted above, was previously found to have
resolved. Furthermore, Dr. Diamond did not explain precisely how he applied the grading
scheme in Table 16-10 at page 482 of the A.M.A., Guides in calculating impairment due to
sensory deficit. Dr. Diamond also improperly sought to assign left arm impairment for decreased
pinch strength. However, Office procedures clearly provide that “grip and/or pinch strength
should not be used to calculate upper extremity impairment caused by a compression neuropathy
such as carpal tunnel syndrome.”17
Appellant did not submit any medical reports from a physician explaining how, pursuant
to the fifth edition of the A.M.A., Guides, her accepted conditions of bilateral carpal tunnel
syndrome caused a permanent impairment to a scheduled member of the body. As noted above,
the Office evaluates schedule award claims pursuant to the standards set forth in the A.M.A.,
Guides. Appellant has the burden of proof to submit medical evidence supporting that she has
permanent impairment of a schedule member of the body.18 As such evidence has not been
submitted, appellant has not established entitlement to a schedule award.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
any injury-related disability or residuals after August 22, 2003 causally related to the accepted
employment injuries. Additionally, the Board finds that appellant has not established that she is
entitled to a schedule award.

15

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
16

See supra note 8.

17

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 4 (June 2003).

18

See Annette M. Dent, 44 ECAB 403 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the May 15 and March 15, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 9, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Los Angeles, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-805
Issued: December 21, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 17, 2012 appellant filed a timely appeal of the February 3, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim. By that
decision, OWCP denied her traumatic injury claim on the grounds that the medical evidence was
insufficient to establish that the claimed condition, fractured right big toe, was causally related to
the established work-related event.1
The Board has duly considered the matter and notes that in the case of William A.
Couch2, the Board held that when adjudicating a claim, OWCP is obligated to consider all
evidence properly submitted by a claimant and received by OWCP before it issues the final
decision. This rule was extended by the Board to include evidence submitted to OWCP by a
claimant on the same date as OWCP’s decision but prior to the actual issuance thereof.3

1

OWCP accepted as factual that on November 30, 2011 appellant, then a 59-year-old real estate appraiser,
sustained an injury to her right toe when she lost her balance while walking downstairs, catching her toe in her pant
leg causing her to fall down three stairs and land on her right leg in the performance of duty.
2

41 ECAB 548 (1990).

3

Linda Johnson, 45 ECAB 439 (1994); see also Patsy R. Tatum, 44 ECAB 490, 496 (1993).

On December 13, 2011 appellant filed a claim for a fractured right big toe due to her
employment activities. In a letter dated January 5, 2012, OWCP requested additional factual and
medical evidence in support of her claim. It allotted appellant 30 days within which to submit
the requested evidence.
On January 6, 2012 appellant submitted a work status report dated December 2, 2011 by
Dr. Arcelia Martin, a Board-certified internist, diagnosing appellant with closed fracture (fx) toe,
phalanx and placing her off work from December 6 through 9, 2011.
On February 2, 2012 she submitted a Doctor’s First Report of Occupational Injury or
Illness dated January 30, 2012. The report listed appellant’s description of the incident, her
subjective complaints, and made an objective finding that she had pain in her right shin and big
toe. It was signed by Dr. Thai T. Do, a Board-certified internist, who diagnosed fx toe, phalanx,
Anserine Bursitis. On February 2, 2012 appellant also submitted a physical therapy/
occupational therapy authorization request signed by Dr. Do.
On February 3, 2012, the same date OWCP issued its final decision, appellant submitted
a medical report from Kaiser Permanente that related her history of injury and diagnosis. On
February 3, 2012 she also submitted an orthopedic clinic report, an authorization for use or
disclosure of patient health information and a physical therapist report.
Nonetheless, in denying appellant’s claim, OWCP stated that appellant responded to the
OWCP development letter with the work status report received January 6, 2012 and OWCP “did
not receive any medical evidence indicating the cause of the medical condition.” It concluded,
therefore, that she had not established that she sustained an injury in the performance of duty, as
alleged.
OWCP, in its February 3, 2012 decision, did not review the additional evidence properly
submitted by appellant and received by OWCP on February 2 and 3, 2012. For this reason, the
case must be remanded for a proper review of the evidence and an appropriate final decision on
her entitlement to compensation. Following such further development as OWCP deems
necessary, it shall issue a de novo decision.

2

IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: December 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Morrisville, NC, Employer
__________________________________________

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Appearances:
Florence A. Bowens, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1154
Issued: January 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 2, 2012 appellant, through his attorney, filed a timely appeal from a
November 8, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his traumatic injury claim and a December 14, 2011 nonmerit decision denying
reconsideration. 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 claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained an injury in the
performance of duty on August 15, 2011 as alleged; and (2) whether OWCP properly denied
appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 15, 2011 appellant, then a 57-year-old supervisor transportation security
officer (screener), filed a traumatic injury claim (Form CA-1) alleging that on that day he fell on
his back during a shift briefing. He claimed injuries to his neck and lower back. A witness
statement from Joshua Smith on the CA-1 form stated “Supervisor Julius was giving a quick
briefing when he lost his balance and fell over. Quickly he was aided back onto his feet by
fellow Officers Martin and Joel.” Appellant’s supervisor, Rodney Godwin, indicated that the
incident was a “first aid injury.”
In an August 17, 2011 report, Dr. Balwinder Sidhu, a Board-certified internist, provided
work restrictions and, in an August 23, 2011 work note, indicated that appellant had an
appointment that day.
September 1 and 6, 2010 work restrictions from Dr. Peter M. Grossi, a neurosurgeon,
were received. In a September 1, 2011 report, Dr. Grossi indicated that appellant was seen on
August 11, 2011 for low back pain and bilateral leg pain, numbness, claudication and gait
disturbance. He indicated that appellant has had worsening back and bilateral leg pain since
February and that his left leg gave out on him and he fell at work two weeks earlier after which
he filed a workman’s compensation claim. Dr. Grossi noted that appellant worked as a
supervisor at the employing establishment. Examination findings were presented and a diagnosis
of severe lumbar and cervical degenerative disease, stenosis and neurogenic claudication and
cervical myelopathy was provided. After questioning appellant, Dr. Grossi stated that it sounded
as if appellant injured his back in 2005 and since had progressive back pain, bilateral lower
extremity pain, weakness and numbness. He recommended surgery. Copies of Dr. Grossi’s
August 11, 2011 medical report, noting a history of intermittent back pain over the last five years
and three episodes at work which had resolved, was provided along with copies of an August 24,
2011 magnetic resonance imaging (MRI) scan study of the thoracic and cervical spine;
September 30, 2011 MRI scan studies of the lumbar, thoracic and cervical spine and several
requests for authorization for surgery.
In an October 4, 2011 letter, OWCP noted that, when appellant’s claim was received, it
appeared to be a minor injury that resulted in minimal or no lost time from work and, because the
employing establishment did not controvert continuation of pay (COP) or challenge the merits of
the case, payment of a limited amount of medical expenses were administratively approved.
However, the merits of appellant’s claim were reopened for consideration given the requests for
surgery authorization. OWCP informed appellant of the type of factual and medical evidence
needed to establish his claim. Appellant was accorded 30 days to submit additional evidence,
including a narrative report from his attending physician which contained a rationalized medical
opinion as to how the reported work incident caused or aggravated his claimed injury.
Appellant filed a claim for disability from September 25 to October 8, 2011, from
October 23 to November 5, 2011. Also submitted was a May 22, 2008 cervical spine MRI scan
report.
In a November 1, 2011 report, Dr. Grossi noted that he last saw appellant on
September 1, 2011. He noted that appellant worked as a supervisor for the employer for many

2

years. Dr. Grossi indicated that appellant had problems with his back for many years but was
currently in severe pain with significant neurologic impairment and inability to work due to a fall
on August 15, 2011. He referenced his September 1, 2011 report for details of his examination
and review of the films. The history of injury related by appellant was: “on August 15, 2011 he
was working at a check point in his normal position at Raleigh Durham International Airport.
He felt a sudden onset of back spasm and pain and weakness. He was forced to stand by the side
of the wall. In doing, his left leg then gave out on him and he fell down landing on his buttock
and back area.” Dr. Grossi reported that, since that time, appellant had increasing back pain and
bilateral lower extremity pain, weakness and numbness and has essentially been unable to walk.
He advised that appellant had severe degenerative disease of his entire cervical spine to his midthoracic spine and severe degeneration and stenosis and throughout his lumbar spine. Dr. Grossi
stated that, although appellant’s condition was the result of a long-standing degenerative disease,
the fall of August 15, 2011 exacerbated his condition. Based on his conversations with an
examination of appellant, he stated that it sounded like he was functioning fine and doing well
prior to the August 15, 2011 fall. Dr. Grossi reiterated that surgery was imperative.
By decision dated November 8, 2011, OWCP denied appellant’s claim on the grounds
fact of injury was not established. It found that the evidence was insufficient to establish that the
event occurred as alleged as the history of injury given by appellant to Dr. Grossi was
inconsistent with the history of injury provided on the CA-1 form.
On December 7, 2011 appellant requested reconsideration. On December 14, 2011
OWCP received a December 5, 2011 letter from appellant indicating that he was submitting
medical reports from Dr. Sonia Pasi, a Board-certified neurologist, and a November 18, 2011
report from Dr. Cary S. Idler, a Board-certified orthopedic surgeon, along with witness
statements from coworkers who were present during the May 10, 2005, February 14, 2006 and
August 15, 2011 injuries. OWCP received on December 14, 2011 new evidence from appellant
which included several witness statements from coworkers attesting to the fact that appellant fell
on August 15, 2011 during the shift briefing, a February 14, 2006 Form CA-1, several reports
from Dr. Pasi and a November 18, 2011 report from Dr. Idler.
By decision dated December 14, 2011, OWCP denied appellant’s request for
reconsideration on the grounds no substantive legal questions were raised and there was no new
and relevant evidence submitted.
LEGAL PRECEDENT -- ISSUE 1
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 and/or specific condition for which compensation is claimed are causally related to the

3

employment injury.2 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.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.4 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.5 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.6
An injury does not have to be confirmed by eyewitnesses in order to establish that an
employee sustained an injury in the performance of duty, but the employee’s statements must be
consistent with the surrounding facts and circumstances and his or her subsequent course of
action.7 An employee has not met his or her burden of proof in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.8 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statements
in determining whether a prima facie case has been established.9 However, an employee’s
statement regarding the occurrence of an employment incident is of great probative force and
will stand unless refuted by strong or persuasive evidence.10
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

2

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

3

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

4

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

5

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

6

Id.

7

See Betty J. Smith, 54 ECAB 174 (2002).

8

See D.B., 58 ECAB 464 (2007); id.

9

Linda S. Christian, 46 ECAB 598 (1995).

10

See V.F., 58 ECAB 321 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an injury on August 15, 2011 to his neck and lower
back when he fell on his back during a shift briefing. He notified his supervisor and filed a claim
for compensation that same day. Appellant also sought medical treatment a few days later on
August 17, 2011. The employing establishment did not controvert the claim.
OWCP found that the evidence was not sufficient to establish the occurrence of the
August 15, 2011 employment incident. The Board, however, finds that the evidence is sufficient
to establish that appellant experienced the August 15, 2011 work incident at the time, place and
in the manner alleged. An employee’s statement alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.12 On his CA-1 form appellant stated that he was giving a shift briefing at
work when he fell over. Coworker Joshua Smith provided a witness statement on the CA-1 form
which verified that appellant was giving a briefing when he lost his balance and fell over.
Dr. Grossi indicated in his September 1, 2011 report that appellant has had worsening back and
bilateral lower extremity pain since February and that his left leg gave out on him and he fell at
work two weeks ago, for which he filed a workers’ compensation claim. Appellant subsequently
reported a history of injury to Dr. Grossi on November 1, 2011 that he was working at a check
point in his normal position when he experienced a sudden onset of back spasm and pain and
weakness and, in so doing, his left leg gave out on him and he fell down. While OWCP focused
on the fact appellant changed where the event took place (i.e., working at his normal check point
as opposed to giving a shift briefing), this does not change the fact that appellant had
experienced some event in his back which resulted in him falling on his back. Furthermore,
appellant’s history of injury as told to Dr. Grossi, approximately three months after the event
occurred, would be entitled to less probative value than the account of injury offered by both
appellant and his coworker, Mr. Smith on the date of injury. As noted, the employing
establishment did not controvert the claim. Under the circumstances of this case, appellant’s
allegations have not been refuted by strong or persuasive evidence and there are no
inconsistencies sufficient to cast serious doubt on his version of the employment incident.13
Consequently, appellant has established the occurrence of the August 15, 2011 work incident.
The remaining issue is whether the medical evidence establishes that appellant sustained
an injury causally related to the employment incident. The question of whether an employment
incident caused an injury is generally established by medical evidence.14

11

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

12

See Caroline Thomas, 51 ECAB 451 (2000).

13

See M.H., 59 ECAB 461 (2008).

14

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

5

In his September 1, 2011 report, Dr. Grossi noted that appellant had a fall at work two
weeks ago, but failed to diagnose any condition resulting from the fall or explain how his fall
resulted in any diagnosed condition. In his November 1, 2011 report, Dr. Grossi provided more
details about how appellant’s fall at work occurred, noting that he had a sudden onset of back
spasm and pain and weakness and, while standing against a wall, his left leg gave out on him and
he fell down. He indicated that appellant has severe degenerative disease of his entire cervical
spine down to his mid-thoracic spine and severe degeneration and stenosis and throughout his
entire lumbar spine. Dr. Grossi opined that appellant’s long-standing degenerative disease
condition was exacerbated by his fall on August 15, 2011 as he appeared to function fine and do
well prior to the August 15, 2011 fall. The Board notes that a medical opinion relating condition
to an employment injury because the employee was asymptomatic before the injury, is
insufficient, without supporting rationale, to establish causal relationship.15 Dr. Grossi did not
provide any other medical rationale to support his conclusion on causal relationship. Thus, his
reports are of limited probative value.
Other medical reports of record are insufficient to establish that the August 15, 2011
work incident caused or aggravated an injury. These reports either predate the claimed injury or
do not specifically explain how the August 15, 2011 incident caused or aggravated a diagnosed
medical condition.
OWCP advised appellant in a letter dated October 4, 2011 that it was his responsibility to
establish that his condition was due to the employment incident. The Board finds that he did not
submit sufficient medical evidence to establish that his claimed medical condition was related to
the August 15, 2011 incident.16 Thus, OWCP’s November 8, 2011 decision is affirmed as
modified.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,17
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.18 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.19 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
15

S.E., Docket No. 08-2214 (issued May 6, 2009).

16

While appellant’s attorney argues on appeal that the evidence should be viewed in its entirety, appellant did not
submit sufficient medical evidence to establish causal relationship.
17

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(1)-(2).

19

Id. at § 10.607(a).

6

ANALYSIS -- ISSUE 2
Appellant disagreed with OWCP’s November 8, 2011 decision which denied his claim.
OWCP denied his request for reconsideration without performing a merit review.
FECA provides that OWCP shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as OWCP considers necessary with respect to
the claim.20 Since the Board’s jurisdiction of a case is limited to reviewing that evidence which
is before OWCP at the time of its final decision,21 it is necessary that OWCP review all evidence
submitted by a claimant and received by OWCP prior to issuance of its final decision. As the
Board’s decisions are final as to the subject matter appealed,22 it is crucial that all evidence
relevant to that subject matter which was properly submitted to OWCP prior to the time of
issuance of its final decision be addressed by OWCP.23 The Board has held that this principal
applies with equal force when evidence is received by OWCP the same day that a final decision
is issued.24
In the present case, OWCP did not review evidence received on December 14, 2011, the
date of issuance of its December 14, 2011 nonmerit decision denying reconsideration. In
particular, it did not mention the reports from Dr. Pasi or Dr. Idler or the witness statements. The
medical reports are particularly important given the fact the Board has found that the August 15,
2011 incident occurred as alleged but causal relationship was not established. The Board,
therefore, must set aside the December 14, 2011 decision of OWCP and remand the case so that
OWCP may fully consider the evidence that was properly submitted by appellant prior to the
issuance of this decision. Following such further consideration and after such further
development as it deems necessary, OWCP shall issue an appropriate decision.
CONCLUSION
OWCP’s November 8, 2011 merit decision is modified to reflect that appellant’s claim is
denied on the basis causal relationship was not established. Its December 14, 2011 nonmerit
decision is set aside and the case remanded for further action.

20

5 U.S.C. § 8124(a)(2).

21

See 20 C.F.R. § 501.2(c)(1).

22

Id. at § 501.6(d).

23
24

William A. Couch, 41 ECAB 548, 553 (1990).
Linda Johnson, 45 ECAB 439 (1994).

7

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as modified and the December 14, 2011 decision
is set aside and the case remanded for further proceedings consistent with this decision of the
Board.
Issued: January 4, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.I., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Coleman, FL, Employer
__________________________________________

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

Docket No. 07-1957
Issued: January 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 22, 2007 which denied his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a back injury in the performance of duty.
FACTUAL HISTORY
On May 1, 2007 appellant, then a 31-year-old maintenance worker supervisor, filed a
Form CA-1, notice of traumatic injury, claiming that on April 27, 2007 he experienced back pain
while he was subduing an inmate and applying restraints. In a witness statement, Larry Rivera, a
coworker, noted that he was responding to an assistance call and observed appellant run into a
recreation cage and subdue an inmate. Appellant stopped work on May 1, 2007.

By letter dated May 21, 2007, the Office advised appellant to submit additional factual
and medical evidence needed to establish his claim.
In a decision dated June 22, 2007, the Office denied appellant’s claim as the evidence
was not sufficient to establish that appellant sustained the alleged injury on April 27, 2007. The
Office found that the evidence was insufficient to establish that appellant experienced the
claimed incident on April 27, 2007. The Office further noted that there was no medical evidence
which provided a diagnosis that could be connected to the claimed events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act, that the claim was
filed within the applicable time limitation 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.”1 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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.3 In some traumatic injury cases this
component can be established by an employee’s uncontroverted statement on the Form CA-1.4
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.5 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.6
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in

1

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

3

Elaine Pendleton, supra note 1.

4

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

5

Rex A. Lenk, 35 ECAB 253, 255 (1983).

6

Id. at 255-56.

2

determining whether a prima facie case has been established.7 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence,8 an employee has
not met this burden when there are inconsistencies in the evidence such as to cast serious doubt
upon the validity of the claim.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence. 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, based on a complete
factual and medical background, supporting such a causal relationship.10
ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to establish that the
events occurred as alleged. The evidence supports that appellant responded to an assistance call
and was subdued an inmate by applying restraints on April 27, 2007. The statement from
Mr. Rivera, appellant’s coworker, advised that he witnessed appellant run into the recreation
cage and subdue an inmate. This account of events was not disputed by the employing
establishment. The Board finds that appellant’s statements are consistent with the surrounding
facts and circumstances. Appellant has established that he experienced the employment incident
on April 27, 2007.
The Board finds, however, that there is no medical evidence in the record at the time of
the Office’s June 22, 2007 decision which establishes that the April 27, 2007 work incident
caused or aggravated a back injury. On May 21, 2007 the Office advised appellant of the
medical evidence needed to establish his claim. Appellant did not submit a medical report from
an attending physician addressing how the April 27, 2007 incident caused or aggravated his
claimed condition. He noted on the CA-1, notice of traumatic injury, that he was treated by
Dr. Frank Pellegrino, a Board-certified family practitioner and Dr. Michael Hill, a Boardcertified neurosurgeon, on April 30, 2007. However, he failed to submit any medical evidence in
support of his claim prior to the June 22, 2007 decision. Therefore, he has failed to establish a
prima facie claim for compensation.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.11 Causal relationships must be established by
7

Dorothy M. Kelsey, 32 ECAB 998 (1981).

8

Robert A. Gregory, 40 ECAB 478 (1989).

9

Joseph A. Fournier, 35 ECAB 1175 (1984).

10

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

11

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

3

rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied his claim for compensation.12
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury on
April 27, 2007 in the performance of duty, causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12

Following issuance of the Office’s June 22, 2007 decision, appellant submitted medical evidence to the Office.
However, the Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final
decision; therefore, the Board is unable to review evidence submitted by appellant after the Office’s decision. See
20 C.F.R. § 501.2(c). This decision of the Board does not preclude appellant from requesting reconsideration before
the Office.

4


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

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

Docket No. 10-2053
Issued: April 7, 2011

Case Submitted on the Record

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

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from a June 22, 2010 merit decision
of the Office of Workers’ Compensation Programs denying her claim for compensation.
Pursuant to the Federal Employees’ Compensation Act 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 that she sustained a
back injury in the performance of duty on April 21, 2010.
FACTUAL HISTORY
On May 6, 2010 appellant, then a 21-year-old casual clerk, filed a traumatic injury claim
(Form CA-1) alleging that on April 21, 2010 she sustained a back injury when she was lifting
tubs and pushing equipment. She notified her employer of her injury on May 6, 2010. The
employing establishment indicated that appellant stopped work on April 21, 2010 and first

received medical care on April 22, 2010. However, it controverted her continuation of pay,
alleging that the supporting documentation was not complete.
In return to work slips dated April 22 to May 1, 2010, Dr. Bonnie L. Riportella, Boardcertified in emergency medicine, stated that appellant was unable to work from April 22 to
May 1, 2010 and could return once she was cleared by her obstetrician gynecologist (OB/GYN).
She also restricted appellant from lifting greater than 10 pounds.
By letter dated May 21, 2010, the Office informed appellant that the evidence received
failed to identify a diagnosed condition, establish that the incident occurred as alleged or that she
sustained an injury in the performance of duty. It requested additional factual and medical
evidence and asked her to respond to the provided questions within 30 days.
In an April 27, 2010 ultrasound report, Dr. Jean M. Dufour, Board-certified in diagnostic
radiology, noted that appellant had back and abdominal pain. She found that appellant was
seven weeks pregnant. Dr. Dufour also noted appellant’s chief complaint as back pain and found
shortness of breath, back pain and a threatened early pregnancy.
In an April 27, 2010 medical report from St. Francis Medical Center, appellant was
diagnosed with a threatened miscarriage and advised to avoid vigorous activity such as heavy
lifting, prolonged periods of standing and strenuous physical workouts. She was also diagnosed
with back pain.
In a May 25, 2010 duty status report (Form CA-17), appellant’s OB/GYN noted that
appellant injured her back on April 21, 2010 when lifting and diagnosed her with low back pain.
The physician noted that appellant was pregnant and could return to work, limiting her lifting to
no more than 50 pounds a day.
By decision dated June 22, 2010, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that she sustained an injury because she did not submit
any medical evidence containing a medical diagnosis in connection with the April 21, 2010
employment incident. It noted that the medical evidence submitted contained a diagnosis of
“pain” which is a symptom and not a diagnosed medical condition.1
LEGAL PRECEDENT
An employee seeking benefits under the Act 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 the Act; 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 are causally related to the
1

The Board notes that appellant submitted additional evidence after the Office rendered its June 22, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision and, therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).

2

employment injury.2 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.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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 based on a complete factual and medical background, supporting such
a causal relationship.5 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. 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.6
ANALYSIS
The evidence establishes that the incident occurred as alleged when appellant was lifting
tubs and pushing equipment on April 21, 2010. The issue, therefore, is whether she has
submitted sufficient medical evidence to establish that the employment incident caused a back
injury. The Board finds that she did not submit sufficient medical evidence to support that she
sustained a back injury causally related to the April 21, 2010 employment incident.7 The
medical evidence is deficient on two grounds: (1) it fails to provide a firm diagnosis; and (2)
there is no narrative opinion on causal relationship between a diagnosed condition and the
employment incident.
Appellant submitted return to work slips dated April 22 to May 1, 2010 from
Dr. Riportella, which noted her work restrictions. Dr. Riportella’s notes do not mention a workrelated incident or name a specific injury and are insufficient to establish appellant’s claim.
2

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

3

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

4

Elaine Pendleton, supra note 2.

5

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

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

3

On April 27, 2010 Dr. Dufour reported that appellant had back and abdominal pain and
diagnosed a pregnancy. She noted appellant’s chief complaint as back pain and diagnosed
shortness of breath, back pain and a threatened early pregnancy. Dr. Dufour’s diagnosis of low
back pain is a description of a symptom rather than a clear diagnosis of the medical condition.8
It becomes almost impossible to establish causal connection in appellant’s claim because the
physician has not identified a medical condition that causes her pain.
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.9 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 nature of the relationship between the diagnosed
condition and the established incident or factor of employment.10 Thus, Dr. Dufour’s medical
report is insufficient to establish appellant’s burden of proof.
The remaining medical evidence of record is also not sufficient to establish a diagnosed
condition causally related to the April 21, 2010 employment incident. The signature on the
May 25, 2010 duty status report which reported low back pain on April 21, 2010 is illegible.
Even if signed by a physician, this report would not constitute probative medical evidence
because it failed to provide a firm diagnosis and did not adequately explain the cause of
appellant’s back condition.11
In the instant case, the record is without rationalized medical evidence establishing a
causal relationship between the April 21, 2010 employment incident and appellant’s back
condition. Thus, appellant has failed to establish her burden of proof.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on April 21, 2010 in the performance of duty, as alleged.

8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
9

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

10

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

11

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

4

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1011
Issued: January 17, 2018

Case Submitted on the Record

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

JURISDICTION
On April 10, 2017 appellant, through counsel, filed a timely appeal from a December 6,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 6, 2016 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUES
The issues are: (1) whether OWCP met is burden of proof to terminate appellant’s
compensation benefits, effective April 22, 2016; and (2) whether appellant met her burden of
proof to establish any continuing disability or residuals on and after April 22, 2016.
FACTUAL HISTORY
On May 16, 2008 appellant, then a 39-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that, on that date, she first realized that her right wrist
condition was caused by factors of her federal employment. She returned to work on
May 17, 2008. OWCP accepted the claim for right de Quervain’s syndrome and bilateral carpal
tunnel syndrome and paid appellant wage-loss compensation from September 13, 2008 through
October 24, 2009 on the supplemental rolls.4 By letter dated November 12, 2009, it placed her
on the periodic rolls for temporary total disability as of October 25, 2009.
Appellant filed a separate occupational disease claim, assigned OWCP File No.
xxxxxx188, alleging injury as of June 26, 2008, which was accepted for left de Quervain’s
tenosynovitis/left radial styloid tenosynovitis.5
Appellant was initially treated by Dr. Alphonse J. Digiovanni, a Board-certified general
surgeon, Dr. Wayne Henstschel, an osteopath specializing in family medicine, and Dr. Chandra
Reddy, a physician specializing in general surgery, for right de Quervain’s syndrome. On
September 10, 2008 she came under the care of Dr. Scott Fried, a Board-certified orthopedic
surgeon, for tendinitis, bilateral de Quervain’s tenosynovitis, bilateral upper extremities
sympathetically mediated pain syndrome, bilateral radial neuropathy, bilateral radial neuritis,
brachial plexitis, right wrist scapholunate ligament grade 2, left wrist grade 1 radioulnar joint
injury, left overuse syndrome, bilateral posterior occipital neuralgia, and bilateral carpal tunnel
median neuropathy. Appellant was also seen by Dr. Steven J. Valentino, a Board-certified
orthopedic surgeon, for bilateral de Quervain’s syndrome.
Appellant continued to treat with Dr. Fried, who continued to opine that appellant had
residuals of her accepted work-related conditions.
On March 14, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Stanley Askin, a Board-certified orthopedic surgeon.6 In a March 28, 2014 report, Dr. Askin
4
OWCP assigned File No. xxxxxx271 to this claim. It also paid appellant for health benefits adjustment for the
period January 17 to September 25, 2010 on the supplemental rolls.
5

On April 3, 2009 OWCP combined OWCP File Nos. xxxxxx188 and xxxxxx271, with the latter as the master

file.
6

OWCP provided a statement of accepted facts (SOAF) noting the accepted conditions for OWCP File Nos.
xxxxxx188 and xxxxxx271 noting that the two claims had been combined with the latter serving as the master file
number. It also advised that it had accepted two traumatic injury claims filed by appellant. Under OWCP File No.
xxxxxx595, OWCP had accepted a back contusion and sacroiliac ligament sprain and under OWCP File No.
xxxxxx404 it had accepted a back sprain under OWCP File No. xxxxxx404.

2

noted the history of injury and appellant’s treatment, detailed the medical evidence he reviewed,
listed his findings on examination, and concluded that the accepted conditions were no longer
active or causing any disability. He opined that she could work her date-of-injury position with
no limitations.
Dr. Fried continued to submit reports opining that appellant continued to have residuals
from the diagnosed conditions, which prevented her from returning to her regular job.
On August 21, 2014 OWCP referred appellant to Dr. Gregory S. Maslow, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Fried and Dr. Askin regarding the status of the accepted conditions and whether appellant
continued to have any residuals or disability due to her accepted work conditions.
In a September 9, 2014 report, Dr. Maslow noted the history of injury, his review of the
SOAF, and appellant’s medical record. He then detailed his physical examination findings.
Dr. Maslow reported full bilateral elbow and wrist range of motion, no olecranon or epicondylar
tenderness, no bilateral tenderness at de Quervain’s point, negative bilateral Finkelstein’s test,
normal skin color and temperature, pain on palpation over bilateral elbow ulnar nerve, and
complaints of bilateral wrist numbness, negative bilateral wrist compression test, and intact
upper extremity reflexes. He diagnosed right de Quervain’s tenosynovitis due to appellant’s
work activities. However, Dr. Maslow concluded that the conditions had resolved based on the
lack of any objective evidence of bilateral de Quervain’s tenosynovitis. He noted that appellant
had a variety of upper extremity complaints which he observed were unrelated to the accepted
de Quervain’s tenosynovitis and there was no definitive evidence supporting a diagnosis of
brachial plexus abnormality. Next, Dr. Maslow explained that the clinical examination showed
some evidence of radiculopathy or cervical radiculitis and possibly mild carpal tunnel syndrome,
but that these conditions were unrelated to her work activities. He concluded that appellant was
capable of working with restrictions and required no further medical treatment.
Dr. Fried continued to submit disability notes and reports opining that appellant
continued to be totally disabled.
In an investigative report dated March 23, 2015, the employing establishment’s Office of
Inspector General noted that appellant had been under surveillance from December 11, 2014
through March 13, 2015 and noted its surveillance findings. It related that she was active, drove
daily, and conducted errands. The report also noted that appellant was observed twisting in and
out of vehicles, opening and closing vehicle doors, and lifting and carrying items.
On August 27, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits as she no longer had any residuals or continuing disability from the
accepted work-related medical conditions. Special weight was accorded to Dr. Maslow’s
impartial medical opinion. Appellant was afforded 30 days to submit additional evidence or
argument.
In response OWCP’s proposal to terminate compensation benefits, counsel contended
that Dr. Maslow’s report lacked sufficient detail to establish resolution of the accepted
conditions.

3

Subsequent to the notice of proposed termination, OWCP received additional reports
from Dr. Fried in which he again opined that appellant was totally disabled due to her accepted
work conditions.
On November 2, 2015 OWCP requested that Dr. Maslow review an attached surveillance
digital video disc and SOAF dated May 9, 2014.7 It also requested that he provide supporting
medical rationale for his conclusions.
In a November 2, 2015 report, Dr. Fried summarized appellant’s examination findings
and objective tests since first treating her in 2008 through December 11, 2014. He reviewed
Dr. Maslow’s September 9, 2014 report, noted his disagreement with Dr. Maslow’s conclusion,
and argued that the diagnostic and clinical evidence supported that appellant continued to suffer
from the diagnosed conditions and was disabled from work.
In a November 25, 2015 supplemental report, Dr. Maslow reviewed the SOAF provided
by OWCP and noted that left de Quervain’s tenosynovitis was accepted under another claim. He
reiterated that he found no objective evidence of bilateral de Quervain’s tenosynovitis during his
examination of appellant and that appellant had recovered from her accepted work conditions.
Dr. Maslow indicated that his review of the video did not cause him to change his opinions.
Dr. Fried continued to submit reports and disability notes supporting appellant’s
continued disability and residuals from the appellant’s accepted conditions.
By decision dated April 21, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective April 22, 2016. It found that Dr. Maslow’s opinion was entitled
to the special weight of the impartial medical examiner.
Subsequent to the April 21, 2016 decision terminating appellant’s benefits, Dr. Fried
resubmitted submitted disability notes, treatment notes, and reports, noting she continued
disability due to her accepted work conditions. He also submitted new reports dated May 19 to
September 1, 2016.
In a letter dated April 29, 2016, counsel requested an oral hearing before an OWCP
hearing representative, which was held on September 27, 2016. He presented arguments in his
letter and at the hearing that Dr. Maslow’s opinion should not be considered the special weight
of the evidence.
Dr. Fried reported in a September 1, 2016 narrative report that appellant had right
shoulder and bilateral hand complaints. He noted that she had experienced additional symptoms
recently due to a little bit of extra driving she had been doing and due to the weather. Dr. Fried
noted appellant’s examination findings and diagnosed a number of conditions. His diagnoses
included: brachial plexopathy/cervical radiculopathy right, with long thoracic neuritis; brachial
7

By letter dated November 2, 2015, OWCP informed counsel that a copy of the surveillance video had been
forwarded to Dr. Maslow. It noted that a copy of the video would be provided to appellant upon request. Counsel
requested a copy of the video on November 13, 2015 and OWCP provided a copy of the video to him on
November 23, 2015.

4

plexopathy/cervical radiculopathy left, with neurogenic tendinitis; bilateral de Quervain’s
tenosynovitis; scapholunate ligament, right wrist; radioulnar joint injury, left wrist; bilateral
radial neuropathy of the wrists; bilateral radial neuritis of the wrists; bilateral carpal tunnel; and
bilateral posterior occipital neuralgia. Dr. Fried concluded that appellant remained symptomatic
and could not return to regular work activities.
By decision dated December 6, 2016, an OWCP hearing representative affirmed
OWCP’s April 29, 2106 decision, finding that appellant no longer had any disability or residuals
due to the accepted work-related conditions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.8 Once it has determined that, an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.9 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.10
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.11 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.12
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.13 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.14 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15
8

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

9

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

10

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

11

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

12

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

13

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009); Darlene R. Kennedy, 57 ECAB 414 (2006).
14

20 C.F.R. § 10.321.

15

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

5

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral de Quervain’s syndrome and bilateral
carpal tunnel syndrome as a result of her federal employment duties in 2008. Appellant stopped
work in June 2008 and was eventually retained on OWCP’s periodic compensation rolls. OWCP
terminated her wage-loss compensation and medical benefits, effective April 22, 2016, based on
the reports of Dr. Maslow, the impartial medical specialist. By decision dated December 6,
2016, an OWCP hearing representative affirmed OWCP’s April 22, 2016 termination decision.
OWCP properly referred appellant to Dr. Maslow for an impartial medical examination
to resolve the conflict in medical opinion evidence, between Drs. Askin and Fried as to whether
appellant had any continuing employment-related residuals or disability, pursuant to 5 U.S.C.
§ 8123(a).
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits based on the September 9, 2014 and November 25, 2015
reports of Dr. Maslow, who accurately summarized her medical history, reviewed an updated
SOAF, viewed surveillance video, and examined her finding no objective evidence to support
ongoing employment-related residuals or disability due to the accepted conditions.
In his September 9, 2014 report, Dr. Maslow conducted a neurologic examination of the
upper extremities, which was essentially normal with no findings of atrophy. He concurred with
Dr. Askin’s opinion that the bilateral carpal tunnel syndrome apparent on his examination was
not work related. Dr. Maslow stated that appellant had not worked in many years and that there
was no indication that the carpal tunnel syndrome would prohibit her return to her previous
employment. He also related that there was also no evidence on examination that any of the
other diagnoses were present or would interfere with return to the previous employment.
Dr. Maslow opined that appellant was capable of returning to work full duty, full-time work
without restrictions imposed by the previously accepted work-related diagnoses. A review of the
surveillance tapes confirmed his opinions.
In his November 25, 2015 supplemental report, Dr. Maslow reiterated his opinion that
there was no objective evidence of bilateral de Quervain’s tenosynovitis and noted that he had
reviewed the SOAF OWCP provided, which stated that left de Quervain’s tenosynovitis had
been accepted under another claim. He again concluded that the accepted work conditions had
resolved without disability.
The Board finds that Dr. Maslow’s opinion is well rationalized and based on a complete
and accurate history, a complete SOAF, and the entire case record, including surveillance videos.
Dr. Maslow examined appellant thoroughly, reviewed the medical records, and reported accurate
medical and employment histories and reviewed the surveillance video of appellant. Thus, his
opinion that the accepted conditions have resolved without residuals is entitled to special
weight.16

16

See Bryan O. Crane, 56 ECAB 713 (2005).

6

The additional medical evidence submitted in response to Dr. Maslow’s report is
insufficient to overcome the special weight accorded to him as an impartial medical specialist
regarding this issue. While Dr. Fried submitted a November 2, 2015 report arguing that
appellant continued to suffer from the diagnosed conditions and was disabled from working and
noting his disagreement with Dr. Maslow’s opinion, he had been on one side of the conflict in
medical opinion regarding whether there were any residuals of the employment-related
conditions and whether they were disabling. Reports from a physician who was on one side of a
medical conflict that an impartial medical specialist resolved, are generally insufficient to
overcome the special weight accorded to the opinion of the impartial medical specialist or to
create a new conflict.17
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifts to
appellant to establish continuing disability after that date causally related to her accepted
injury.18 To establish causal relationship between the accepted conditions as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background supporting such causal
relationship.19 Causal relationship is a medical issue and the medical evidence required to
establish causal relationship is rationalized medical evidence.20
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established continuing disability or residuals after
April 22, 2016 causally related to her accepted employment injuries.
Following OWCP’s termination of appellant’s wage-loss compensation and medical
benefits, effective April 22, 2016, the burden of proof shifted to appellant to demonstrate that she
continued to be disabled from work on and after that date due to her accepted employment
conditions.21
Subsequent to the termination of her wage-loss compensation, effective April 22, 2016,
appellant submitted reports from Dr. Fried which were previously of record as well as new
progress notes dated May 19 to September 1, 2016. OWCP also received a narrative report from
Dr. Fried dated September 1, 2016. In these reports, Dr. Fried found that appellant continued to
have residuals of her accepted employment injuries and that she was unable to perform her
regular work duties. He offered a conclusion, but no medical rationale explaining why she had
continuing disability due to the accepted conditions. A medical opinion that states a conclusion,
17

I.J., 59 ECAB 408 (2008); Dorothy Sidwell, 41 ECAB 857, 874 (1990).

18

Manuel Gill, 52 ECAB 282 (2001).

19

R.D., Docket No. 16-0982 (issued December 20, 2016).

20

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

21

Supra note 18.

7

but does not offer any rationalized medical explanation regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.22
Moreover, the Board has long held that reports from a physician who was on one side of
a medical conflict that an impartial medical specialist resolved, are generally insufficient to
overcome the special weight accorded to the report of the impartial medical specialist, or to
create a new conflict.23 The Board notes that as Dr. Fried was on one side of the conflict
resolved by Dr. Maslow, Dr. Fried’s additional reports and disability notes are of insufficient
weight to overcome the special weight accorded to Dr. Maslow’s pinion or to create a new
medical conflict. The Board finds, therefore, that appellant has not established continuing
disability or residuals after April 22, 2016 causally related to the accepted conditions.24
The Board also notes that Dr. Fried diagnosed a number of additional conditions in his
September 1, 2016 report. Dr. Fried however offered no opinion regarding the cause of these
additional conditions. The Board has held that medical evidence which does not offer a clear
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.25 Therefore, this report from Dr. Fried does not establish appellant’s
claim for additional employment-related medical conditions.26
Thus, the Board finds that appellant has not met her burden of proof to establish
continuing residuals or disability after April 22, 2016 due to her accepted conditions. Appellant
may submit new evidence or argument with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 22, 2016. The Board further finds that she
has not met her burden of proof to establish any continuing disability or residuals after
April 22, 2016.

22

See E.H., Docket No. 17-0986 (issued August 10, 2017).

23

Id.

24

Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy Sidwell, supra note 17.

25

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

26

See J.S., Docket No. 16-0472 (issued June 3, 2016).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6, 2016 is affirmed.
Issued: January 17, 2018
Washington, DC

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

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

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

9