United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sioux Falls, SD, Employer
__________________________________________

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

Docket No. 15-1914
Issued: January 12, 2016

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 September 18, 2015 appellant timely appealed a March 23, 2015 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from July 29, 2014, the date of the most recent merit decision, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of appellant’s claim.2

1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). The 180th day from the March 23, 2015 decision was September 19, 2015. Since using
September 22, 2015, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal
rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is
September 18, 2015, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly found that appellant abandoned her request for an
oral hearing.
FACTUAL HISTORY
On August 31, 2011 appellant, then a 48-year-old city letter carrier filed an occupational
disease claim (Form CA-2) alleging that she sustained right shoulder and arm pain due to the
repetitive nature of her work requirements while in the performance of duty. She indicated that
she first realized the condition was caused or aggravated by her employment on
November 2, 2010.
Appellant stopped work on November 3, 2010 and returned on
August 27, 2011.
OWCP accepted the claim for other conditions of the right shoulder region not elsewhere
classified; and right lateral epicondylitis. Appellant received compensation benefits. OWCP
continued to develop the claim.
By decision dated July 29, 2014, OWCP found that appellant’s actual earnings as a
permanent modified city carrier working 40 hours per week for the employing establishment
fairly and reasonably represented her wage-earning capacity. It advised that she had
demonstrated the ability to perform the duties of the position for 60 days or more, and that the
position was considered suitable to her partially disabling condition. OWCP found that
appellant’s actual earnings met or exceeded the current wages of the job held when injured, that
her entitlement to compensation for wage loss ended the date she was reemployed with no loss in
earning capacity, and that her wage-loss compensation must be terminated. It noted that the
medical benefits were still authorized for treatment of her accepted conditions.
On August 27, 2014 appellant timely requested an oral hearing before an OWCP hearing
representative.
In a January 21, 2015 letter, OWCP notified appellant that a telephone hearing was
scheduled for March 10, 2015 at 3:00 p.m. Eastern Standard Time (EST). It instructed her to
telephone a toll-free number and enter a pass code to connect with the hearing representative.
The record reflects that the notice was mailed to appellant’s address of record.
Appellant did not call at the appointed time for the scheduled hearing.
By decision dated March 23, 2015, OWCP found that appellant abandoned her requested
hearing. The decision noted that the hearing was scheduled for March 10, 2015, but that she
failed to appear as instructed. The decision also found that there was no indication that appellant
contacted OWCP either prior or subsequent to the scheduled hearing to explain her failure to

2

participate. Based on these factors, OWCP concluded that she abandoned her oral hearing
request.3
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon written request to the address
specified in the decision within 30 days of the date of the decision for which a hearing is sought.4
Unless otherwise directed in writing by the claimant, the hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.5
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by telephone. The
failure of the claimant to request another hearing within 10 days, or the failure of the claimant to
appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. Where good cause is shown for failure to appear at the second
scheduled hearing, review of the matter will proceed as a review of the written record.6 Where it
has been determined that a claimant has abandoned his or her request for a hearing, OWCP’s
Branch of Hearings and Review will issue a formal decision.7
ANALYSIS
By decision dated July 29, 2014, OWCP found that appellant’s actual earnings fairly and
reasonably represented her wage-earning capacity. On August 27, 2014 appellant timely
requested an oral hearing.
In a January 21, 2015 letter, OWCP notified appellant that a telephone hearing was
scheduled for March 10, 2015 at 3:00 p.m. EST. It mailed the notice to her address of record.
OWCP instructed appellant to telephone a toll-free number and enter a pass code to connect with
the hearing representative. Appellant did not telephone at the appointed time, did not request a
postponement of the hearing, and did not explain her failure to appear at the hearing within 10

3

The record also contains a February 20, 2015 OWCP decision finding that appellant did not timely request a
hearing with regard to a July 15, 2014 OWCP decision which denied her claim for compensation from November 3,
to 15, 2010. The Board does not have jurisdiction over this matter. See 20 C.F.R. § 501.3(e).
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

Id. at § 10.622(f).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).

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days of the scheduled hearing date of March 10, 2015.8 The Board therefore finds that she
abandoned her request for a hearing.
On appeal, appellant apologized for missing the hearing and argued the merits of her
claim. However, the only issue before the Board is whether OWCP properly found that she
abandoned her request for a hearing. The Board does not have jurisdiction over the merits of the
claim.
CONCLUSION
The Board finds that OWCP properly concluded that appellant abandoned her request for
an oral hearing.
ORDER

IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2016
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

Id. See also supra note 6.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 16-0837
Issued: July 8, 2016

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 March 15, 2016 appellant filed a timely appeal from a November 2, 2015 merit
decision and a December 15, 2015 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury
causally related to a February 17, 2015 employment incident; and (2) whether OWCP properly
denied appellant’s request for reconsideration without merit review of the claim under 5 U.S.C.
§ 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that on appeal appellant submitted 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. 09-0196 (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).

FACTUAL HISTORY
On February 26, 2015 appellant, then a 63-year-old librarian, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries in the performance of duty on
February 17, 2015.3 On the claim form she alleged that she was removing 40 books from high
shelves and placing them on a cart, and while pushing the cart, she injured her back. Appellant
described the injury as a fracture of the upper and lower back. According to the claim form, she
stopped work on February 18, 2015 and returned to work on February 23, 2015. The record also
contains claims for compensation (Form CA-7) for April 13 to 24, 2015, and April 27 to
May 8, 2015.
Appellant submitted a report dated February 18, 2015 from Dr. David Walker, an
employing establishment physician, who provided a history that she complained of a back strain
while lifting books from a high shelf. Dr. Walker also indicated that she reported performing
heavy pushing activity over the past month at work, which had aggravated her back pain. He
diagnosed back strain. An x-ray of the thoracic spine dated February 18, 2015 showed diffuse
osteopenia, according to Dr. Darin J. Hildoer, a radiologist.
On February 19, 2015 appellant was treated by Dr. Ashley Pullen, a Board-certified
family practitioner. In a report of that date, Dr. Pullen reported that appellant had a history of
osteoporosis of the spine and pain worsened in the mid and lower back after moving a heavy cart
at work. She provided results on examination and diagnosed back pain, osteoporosis, urinary
tract infection and pleurisy. Dr. Pullen indicated that a magnetic resonance imaging (MRI) scan
was recommended to rule out possible vertebral fractures.
In a thoracic spine MRI scan report dated February 24, 2015, Dr. Hildoer, a diagnostic
radiologist, reported acute to subacute mild to moderate fracture of the T5 vertebral body, and
acute mild compression fracture of the T6 vertebral body.
In a report dated March 13, 2015, Dr. Joseph Traina, a Board-certified neurosurgeon,
provided a history that appellant had an injury on January 20, 2015 and a second injury while
lifting many heavy books on February 17, 2015. He provided results on examination and
diagnosed closed thoracic fracture. Dr. Traina indicated that appellant should be off work until
April 13, 2015.
Dr. Traina submitted a note dated April 27, 2015, indicating that when he saw appellant
on March 13, 2015 she reported suffering a muscle strain at work on January 20, 2015. He
reported that she had recuperated from that injury, and then on February 17, 2015 she was
moving heavy books and felt a sharp pain. Dr. Traina noted that the MRI scan of February 24,
2015 reported an acute fracture.
By decision dated May 22, 2015, OWCP denied appellant’s claim for compensation. It
accepted that the February 17, 2015 employment incident occurred as alleged, but found that the
3

Appellant also filed an occupational disease claim (Form CA-2) on February 26, 2015. (OWCP File
No. xxxxxx648). The claim form described work activity on January 20, 2015, such as opening heavy boxes and
moving mail containers. Appellant reported on the claim form she injured her lower and upper back. This claim is
not before the Board on this appeal.

2

medical evidence of record was insufficient to establish an injury causally related to the
February 17, 2015 employment incident.
Appellant requested a review of the written record before an OWCP hearing
representative on June 15, 2015. She submitted a June 15, 2015 report from Dr. Pullen.
Dr. Pullen noted that appellant had a history of osteoporosis, and was seen on February 19, 2015
“after moving heavy books in the library.” She reported that appellant had been diagnosed with
pleurisy a day earlier. Dr. Pullen wrote, “Due to [appellant’s] history of osteoporosis, I
recommended a[n] MRI [scan] of the spine to rule out compression fractures as the heavy lifting
could have resulted in a compression fractures of the spine. [Appellant] had MRI [scans] of the
spine that did confirm acute compression fractures of the spine. She has been referred to and
followed by specialists since the diagnosis of vertebral compression fractures.”
By decision dated November 2, 2015, the hearing representative affirmed the May 22,
2015 OWCP decision. The hearing representative found that the medical evidence was not
rationalized with respect to causal relationship between a thoracic fracture and the February 17,
2015 employment activity.
On November 30, 2015 appellant requested reconsideration of her claim. She indicated
that she had mailed a CD with her MRI scan results to the hearing representative and would like
a medical expert to review the results. Appellant noted that the MRI scan results showed an
acute fracture, which physicians use to describe a recent injury. She submitted a physical
therapy note and an undated note referring to a chest x-ray.
By decision dated December 15, 2015, OWCP denied merit review of the claim. It found
that appellant had not submitted pertinent and relevant new evidence with respect to the medical
issue presented.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish that he or
she sustained an injury while in the performance of duty.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. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.5
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

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specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
In the present case, the claim filed was for an injury from removing books from a high
shelf and pushing a cart on February 17, 2015.7 OWCP has accepted the factual element of this
claim. The issue is whether the medical evidence of record establishes a diagnosed condition
causally related to the identified February 17, 2015 incidents.
As noted, appellant received treatment from Dr. Walker on February 18, 2015. He
provides a brief history of lifting books from a high shelf, but did not provide an opinion as to
causal relationship between a diagnosed condition and the employment activity. Dr. Pullen
treated appellant on February 19, 2015 noting a history of osteoporosis. A February 24, 2015
MRI scan showed acute compression fractures at T5 and T6.
Dr. Pullen also did not provide a rationalized medical opinion on causal relationship
between diagnosed compression fractures and the February 17, 2015 employment activity. Her
June 15, 2015 report provides only a brief history of moving heavy books without further
explanation. Dr. Pullen subsequently reports that an MRI scan was ordered as heavy lifting
could have caused compression fractures. The MRI scan, once completed, confirmed acute
compression fractures. However, this is not a rationalized medical opinion as it is speculative
and lacking any medical explanation as to how the specific incidents on February 17, 2015
caused compression fractures.8 It is not enough for the MRI scan to show acute compression
fractures. There must be a clear explanation as to why the physician believes that the findings on
the February 24, 2015 MRI scan were the result of the identified employment activity on
February 17, 2015. This is particularly important in this case because, as noted above, appellant
had alleged other recent incidents of lifting and pushing items.
The February 24, 2015 MRI scan report of Dr. Hildoer provided no opinion on causal
relationship. As such, it is of limited probative value.9
Dr. Traina treated appellant on March 13, 2015, but did not provide an opinion on causal
relationship between a diagnosed condition and the February 17, 2015 employment incidents. In
an April 27, 2015 note, he referred to MRI scan results, without further explanation.
6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

Appellant has also filed an occupational disease claim, for an injury occurring over more than on workday.
With respect to the occupational disease claim, she identified a January 20, 2015 incident. The Board also notes that
the history provided to Dr. Walker in the February 18, 2015 treatment note referred to heavy pushing activity for a
month. To the extent that appellant is claiming an injury from such activity commencing on January 20, 2015 and
continuing, she may pursue that issue with respect to the occupational claim which is not presently before the Board.
8

Medical opinions using terms such as the condition is “probably” related, “most likely” related or “could be”
related are speculative and diminish the probative value of the medical opinion evidence. Kathy A. Kelley,
55 ECAB 206, 211 (2004).
9

See J.D., Docket No. 16-0064 (issued June 1, 2016); Michael E. Smith, 50 ECAB 313 (1999).

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The Board finds that the medical evidence of record does not include a medical report
that has a complete factual and medical background and a rationalized medical opinion on the
issue of causal relationship. It is appellant’s burden of proof to establish the claim, and the
Board finds that she did not meet her burden in this case.
On appeal, appellant reiterates her argument that a medical expert should review a CD of
diagnostic testing. She included a copy of a CD and medical evidence of record. As noted, it is
appellant’s burden of proof to establish her claim. The Board has reviewed the medical evidence
of record that was before OWCP as of November 2, 2015. For the reasons discussed above,
appellant did not meet her burden in this case.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”11
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.12
ANALYSIS -- ISSUE 2
In the present case, appellant submitted a reconsideration request dated
November 30, 2015. However, she did not show that OWCP erroneously applied or interpreted
a specific point of law, nor did she advance a relevant legal argument not previously considered
by OWCP. Appellant argued that the medical evidence of record showed an acute fracture and
this should require further development of the evidence and review by a medical expert. As
discussed above, it is appellant’s burden of proof to submit probative evidence and the medical
evidence showing acute thoracic fractures did not establish the claim. The reopening of a case is
not required where the legal contention has no reasonable color of validity.13

10

5 U.S.C. § 8128(a) (providing that “[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

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

13

Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louis, 54 ECAB 783 (2003).

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The underlying merit issue presented was a medical issue, and appellant did not submit
any pertinent and relevant new evidence on the issue of causal relationship between a diagnosed
condition and the February 17, 2015 employment activity.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP, or submit relevant
and pertinent new evidence not previously considered by OWCP. Accordingly, she did not meet
the requirements of 20 C.F.R. § 10.606(b)(3) and OWCP properly declined to review the merits
of the claim.
CONCLUSION
The Board finds that appellant did not establish an injury causally related to a
February 17, 2015 employment incident. The Board further finds that OWCP properly denied
the reconsideration request without merit review of the claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 15 and November 2, 2015 are affirmed.
Issued: July 8, 2016
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

6


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

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

Docket No. 07-2340
Issued: June 6, 2008

Case Submitted on the Record

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

JURISDICTION
On September 17, 2007 appellant filed a timely appeal from the July 16, 2007 decision of
the Office of Workers’ Compensation Programs finding that he was not entitled to 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.
ISSUE
The issue is whether appellant has reached maximum medical improvement.
FACTUAL HISTORY
This is the second appeal in this case. By decision dated May 31, 2007, the Board set
aside the Office’s August 8, 2006 decision granting appellant a schedule award for eight percent

impairment of his left upper extremity and remanded the case for further medical development.1
The Board found that the case was not in posture for a decision because the opinion of the Office
medical adviser was not sufficiently rationalized for the Board to verify his impairment
calculation. The Board noted that the record was unclear as to how the Office medical adviser
determined the date of maximum medical improvement and directed the Office to explain the
determination of the date of maximum medical improvement. The history of the case, as set
forth in the prior Board decision, is hereby incorporated by reference.
On June 7, 2007 the Office referred appellant for a second opinion evaluation to
determine the extent and degree of his left upper extremity impairment for purposes of a
schedule award.
On June 27, 2007 Dr. John Lamb, a Board-certified orthopedic surgeon, examined
appellant and evaluated his condition. He noted that appellant’s primary complaint was
numbness in his left arm. Appellant stated that he had numbness from the medial side of his
elbow, down the forearm and into the fourth and fifth fingers. He also indicated that he had
numbness and dysesthesia along the ulnar border of the forearm and hand. Although appellant
noticed no general weakness in his hands, sometimes his left hand lost strength suddenly,
causing him to drop whatever he was carrying. On examination, Dr. Lamb found a well-healed
surgical scar along the medial side of the distal arm, elbow and proximal forearm. He found no
apparent muscle atrophy in the left arm. Dr. Lamb stated that the motor function of the left arm
was normal compared to the right arm. He found no apparent difference in skin moisture or
temperature.
Dr. Lamb reviewed appellant’s medical records, which confirmed that appellant was
injured in February 2000 and that he underwent a transposition of his ulnar nerve in
September 2000. Following his surgery, he had a period of immobility and then physical
therapy. Appellant stabilized in the first part of 2001. In February 2006, appellant reported
decreased sensation on the ulnar side of his left elbow, forearm and hand. There was no
significant difference in elbow function or in hand-muscle strength. Dr. Lamb found no need for
any additional diagnostic testing. He stated that an electromyogram was not necessary because
appellant’s muscle strength was symmetrical between his two hands.
Dr. Lamb diagnosed a history of a treated ulnar neuropathy and nerve entrapment in the
left elbow and residual numbness in the ulnar distribution of the left forearm and hand.
Although the medical records did not expressly identify the date appellant was released from
treatment, he opined that it was reasonable to extrapolate that maximum medical improvement
was reached on approximately January 1, 2001. Dr. Lamb proceeded to use the American
Medical Association, Guides to Evaluation of Permanent Impairment (5th ed. 2001) to find an
impairment rating based on a deficit of 26 to 60 percent in the sensory function of the ulnar nerve
below the forearm. He found that appellant had a four percent impairment of his left upper
extremity because of the persistent numbness in the ulnar nerve distribution. Dr. Lamb stated
1

Docket No. 06-2097 (issued May 31, 2007). On February 2, 2000 appellant, then a 37-year-old letter carrier,
filed a claim for a traumatic injury, alleging that he experienced numbness in his left hand and pain from his hand to
his elbow after picking up a parcel that day. The Office accepted this claim for left ulnar neuropathy and brachial
neuritis.

2

that it would not be appropriate to provide a separate rating for any of appellant’s fingers because
the impairment was based in the left elbow and the impairment rating he had provided properly
considered the impairment.
By revised decision dated July 16, 2007, the Office denied appellant’s claim for an
increased schedule award.2 After reporting Dr. Lamb’s medical findings, including his
impairment rating, the Office found that the medical evidence supported the conclusion that
appellant’s condition had not yet reached a fixed and permanent state. The Office stated that
appellant was not entitled to a schedule award because he had not met the requirement of
reaching maximum medical improvement.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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 should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.5
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.6
The Office procedures provide that, to support a schedule award, a claimant’s file must
contain competent medical evidence which shows “that the impairment has reached a permanent
and fixed state and indicates the date on which this occurred (‘date of maximum medical
improvement’ or DMI).”7 It is a well-settled rule that maximum medical improvement arises at
the point at which the injury has stabilized and will not improve further. This determination is
factual in nature and depends primarily on the medical evidence.8

2

The Board notes that the record contains two full opinions dated July 16, 2007. Though there is no explanatory
memorandum, the Board presumes that the decision marked as “REVISION” was the one mailed to appellant. The
other opinion denies appellant’s claims on the grounds that the medical evidence established that he did not have an
impairment greater than eight percent of his upper left extremity.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

20 C.F.R. § 10.404(a).

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6b(1) (August 2002).
8

Peter C. Belkind, 56 ECAB 580 (2005).

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ANALYSIS
The Office found that appellant’s condition had not yet reached a fixed and permanent
state. The issue to be determined is whether the medical evidence of record established that
appellant has reached maximum medical improvement.
Following the Board’s remand of this case to determine the extent of appellant’s
permanent left upper extremity impairment and the date of his maximum medical improvement,
the Office referred appellant to Dr. Lamb, a Board-certified orthopedic surgeon. On June 27,
2007 after examining appellant and reviewing his medical records, Dr. Lamb diagnosed treated
left elbow ulnar neuropathy and nerve entrapment, with residual numbness in the ulnar
distribution of the left forearm and hand. Based on appellant’s persistent numbness, he found a
sensory deficit of the ulnar nerve below the forearm that resulted in a four percent impairment of
his left upper extremity. Dr. Lamb stated that, although the medical records did not explicitly
state the date of appellant’s discharge from treatment, it was reasonable to extrapolate that he
reached maximum medical improvement on approximately January 1, 2001.
Despite these findings, the Office denied appellant’s claim for a schedule award on the
grounds that he had not yet reached maximum medical improvement. The Office provided no
rationale for its decision beyond stating that its findings were based on Dr. Lamb’s opinion.
However, given that Dr. Lamb found that appellant had reached maximum medical
improvement, the Board finds that the July 16, 2007 decision of the Office is therefore not
supported by the medical evidence.
Considering Dr. Lamb’s finding that appellant had reached maximum medical
improvement and following any necessary further development, the Office should issue a
de novo decision determining whether appellant has reached maximum medical improvement
and, if so, to whether he is entitled to a schedule award for any permanent impairment to his left
upper extremity.
CONCLUSION
The Board finds that the case is not in posture for decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2007 is set aside and the case is remanded for action
consistent with this decision.
Issued: June 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DELIVERY CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 10-1667
Issued: May 13, 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 June 8, 2010 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ merit decision dated February 17, 2010 denying his claim for
an August 3, 2007 injury. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he sustained an injury on August 3, 2007
causally related to his modified duties.
FACTUAL HISTORY
On April 6, 2009 appellant, then a 46-year-old mail processor, filed a traumatic injury
claim asserting that he sustained a low back injury on August 3, 2007 while lifting a tray of mail.
1

5 U.S.C. § 8101 et seq.

He stated that the injury occurred at 2:30 a.m. and he could not move for about 10 minutes until
the pain subsided. Appellant stopped work on August 3, 2007 and did not return. In a July 1,
2009 letter, the employing establishment contested the claim as attendance records indicated that
he did not work on August 3, 2007. In an undated statement, appellant indicated that when he
lifted the tray of mail on August 3, 2007 he experienced a sharp pain in his low back and right
leg and could not continue working. He stated that a coworker assisted him to his car and he was
unable to contact his supervisor until later that morning.2
In an August 21, 2007 report, Dr. Mark Filippone, a Board-certified physiatrist, indicated
that appellant had a work injury in 1997, but no claim was filed as he got better. He noted the
March 11, 2002 work injury and advised that appellant was out of work for about nine months.
Dr. Filippone stated that there was no other history of trauma or injury. He noted that appellant
had been working on a full-time, limited-duty basis with a five-pound weight limit since about
2005. Dr. Filippone noted that appellant was last able to work on August 2, 2007 and that he
was seen on August 7, 2007 at an emergency room because of increased pain when sitting,
bilateral low back pain with radiation and weak hips. A March 28, 2002 magnetic resonance
imaging (MRI) scan showed L5-S1 degenerative changes and subligamentous disc herniation at
L5-S1, eccentric to the right. Dr. Filippone listed findings and noted an impression of low back
derangement, cervicalgia with radiculitis, internal derangement of the right shoulder and right
knee internal derangement. In this report and in an August 21, 2007 attending physician’s report,
he opined that appellant was totally disabled since August 2, 2007 and that his conditions were
work related.3 In a September 27, 2007 report, Dr. Filippone noted that electromyogram (EMG)
and nerve conduction studies performed on that date showed bilateral L5-S1 radiculopathy,
worse on the right, which he opined was due to the work injury. An October 1, 2007 MRI scan
showed L5-S1 disc herniation. Physical therapy notes were also submitted.
In a November 22, 2007 report, Dr. Filippone reiterated the history of work injuries as set
forth in his August 21, 2007 report and noted the results of the recent testing. He opined that
appellant remained totally disabled. Dr. Filippone indicated that the March 28, 2002 MRI scan
study showed degenerative changes at L5-S1 and disc herniation at L5-S1 on the right and the
October 1, 2007 MRI scan study showed a large herniation at L5-S1 with straightening of the
normal lordotic curve spine suggestive of muscle spasm and lumbar myalgia. He stated that the
results of the lumbar MRI scan studies from 2002 and 2007 showed a “material worsening” of
2

Appellant has an accepted lumbosacral strain for a March 11, 2002 injury in claim File No. xxxxxx804. On
August 7, 2007 he claimed a recurrence of disability beginning August 3, 2007 in claim number xxxxxx804. The
claimed recurrence occurred “while turning to lift my next tray of mail I felt a sharp pain on my right lower back.”
The form listed appellant’s work hours from 11:00 p.m. to 7:30 a.m. with the injury occurring at 2:30 a.m.
Appellant stopped work at 2:30 a.m. on August 3, 2007. The Office initially accepted a recurrence beginning
August 3, 2007 but, on March 23, 2009, it rescinded its acceptance. In a February 17, 2010 decision, an Office
hearing representative affirmed the March 23, 2009 decision. Appellant appealed the February 17, 2010 decision,
which is proceeding separately under (Docket No. 10-1666). As the present claim File Nos. xxxxxx800 and
xxxxxx804 both involve the same part of the body, the Office, upon return of the case record, should ensure that
these files are doubled under Office procedures. Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000).
3

In this attending physician’s report and those dated September 27 and October 23, 2007, Dr. Filippone checked
a box “yes” on the form report to indicate that appellant’s condition was employment related.

2

appellant’s condition. The Office received physical therapy notes as well as treatment notes and
attending physician reports from Dr. Filippone, who continued to opine with an affirmative mark
that the diagnosed lumbosacral radiculopathy was caused or aggravated by employment activity
and that appellant was totally disabled commencing August 3, 2007.
In an August 7, 2007 report, Dr. Lynn D. Reyman, a Board-certified internist and
emergency room physician, noted that appellant had moderate back pain that began five days
earlier with “activities of daily living.” She noted that he lifted and bent a lot at work, had a
herniated disc based on a 2002 MRI scan and intermittent back problems depending on activity.
Dr. Reyman diagnosed low back muscle spasm and history of herniated disc in lower spine.
In a March 21, 2008 report, Dr. Andrew Weiss, a Board-certified orthopedic surgeon and
second opinion physician, noted the history of injury, reviewed a statement of accepted facts and
the medical record and set forth his examination findings. He opined that the lumbosacral sprain
causally related to the March 11, 2002 work injury had resolved by objective clinical criteria and
there was no evidence of lumbosacral radiculopathy or evidence of herniated disc or spinal
stenosis in the January 10, 2007 MRI scan films. Dr. Weiss found no positive objective findings
related to either the March 11, 2002 work injury or the August 3, 2007 recurrence. He advised
that appellant reached status quo ante as it related to the March 11, 2002 work injury and the
August 3, 2007 recurrence. Dr. Weiss opined that there was no work-related disability and that
appellant was able to work full time without restrictions. No further medical treatment or testing
was necessary. Dr. Weiss also completed a March 21, 2008 work capacity evaluation indicating
that appellant was able to perform his usual job with no limitations.
In a May 13, 2008 report, Dr. Steven P. Waldman, a Board-certified anesthesiologist,
noted the March 11, 2002 work injury and listed an impression of L5-S1 radiculopathy based on
the September 27, 2007 EMG. In a May 29, 2008 attending physician’s report, he checked a box
“yes” that appellant’s lumbar radiculopathy was caused or aggravated by his work.
Dr. Waldman stated that appellant was totally disabled since August 3, 2007. Copies of
appellant’s July 15 and 22, 2008 nerve block procedures for L5 and L5-S1 were provided.
Dr. Filippone continued to opine that appellant was totally disabled from his work-related
injury. In an August 4, 2009 report, he noted that appellant was seen for injuries he sustained at
work on August 3, 2007. Dr. Filippone referenced the April 6, 2009 traumatic injury claim and
noted previously indicating, on August 21, 2007, that appellant’s low back was injured at work.
He indicated that appellant provided a narrative of his job description and a statement of how the
nature of his work caused the injury. Dr. Filippone provided an impression of lumbosacral
radiculitis. He opined that the abnormalities were the direct result of August 3, 2007 injuries that
occurred at work and appellant remained totally disabled.
In an August 11, 2009 decision, the Office denied the claim for an August 3, 2007 injury
finding that the evidence did not establish that the employment incident occurred, as alleged.
On August 20, 2009 appellant requested an oral hearing which was held on
December 18, 2009. At the hearing, he testified that on August 3, 2007 he lifted a tray of mail
then turned to his right and felt a sharp pain in his lower back. Appellant stated that the mail tray

3

did not weigh very much and it was the motion of lifting and twisting that caused his pain. He
stated that he was unable to work without pain afterwards.
In treatment and attending physician reports, Dr. Filippone continued to opine that
appellant was totally disabled from his lumbosacral radiculopathy which he opined, with an
affirmative mark, was causally related to his work injury.
In a November 2, 2009 statement, Alvis Hightower, a coworker, stated that he noticed
appellant was in pain on August 3, 2007 and wanted to go home. He stated that he helped him to
his car as he could not make it on his own. In a November 5, 2009 statement, Vincent M.
Caiazzo, a coworker, stated that on August 3, 2007 he was outside and saw appellant, who could
hardly walk, being helped by Mr. Hightower. He stated that he ran to help them and they got
appellant to his car. In a December 17, 2009 statement, Mark Harrison, a retired supervisor,
stated he was appellant’s supervisor on August 3, 2007 when he “sustained an injury related to a
previous injury” at work.
By decision dated February 17, 2010, an Office hearing representative affirmed the
Office’s August 11, 2009 decision finding that the factual and medical evidence did not support
that a low back injury was sustained, as alleged.
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 timely filed within the applicable time
limitation period of the Act, and that an injury4 was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is
causally related to the employment injury.5 These are the essential elements of each
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,

4

The Office’s regulations define a traumatic injury 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. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
5

Donald R. Greasier, 57 ECAB 281 (2005).

6

Id. See also Gary J. Watling, 52 ECAB 357 (2001).

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generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
subsequent course of action. 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 cast doubt on an employee’s statements in
determining whether he or she has established a case. However, 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
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 Rationalized medical evidence is medical evidence
which includes a physician’s rationalized medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors.10 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.11 A claimant may establish that
the employment incident occurred as alleged but fail to show that his or her disability or
condition relates to the employment incident.12
ANALYSIS
The Office denied appellant’s claim, finding that he did not establish that he sustained an
employment-related injury on August 3, 2007, as alleged. It found that he failed to establish that
the employment incident occurred at the time, place and in the manner alleged and failed to
provide sufficient medical evidence to establish causal relationship. The Board finds that the
evidence of record is sufficient to establish that the August 3, 2007 incident occurred, as alleged.
The Office found that appellant did not establish the factual component of his claim on
the following grounds: the Board finds that he submitted sufficient factual information to
establish by the preponderance of the evidence that he sustained an injury at the time, place and
in the manner alleged.

7

S.P., 59 ECAB 184 (2007).

8

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

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Donald W. Wenzel, 56 ECAB 390 (2005).

11

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

12

N.S., 59 ECAB 422 (2008); T.H., 59 ECAB 388 (2008).

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In both his recurrence claim, filed September 7, 2007, and his traumatic injury claim,
filed April 6, 2009, appellant stated his back pain occurred between 2:00 to 2:30 a.m. on the
morning of August 3, 2007 while lifting a tray of mail and he stopped work thereafter. The
record reflects that his work hours were from 11:00 p.m. to 7:30 a.m. and he related that the
onset of his low back pain began in the early morning hours on August 3, 2007 while at work.
Appellant explained in an undated statement received August 7, 2009 that his coworkers assisted
him to his car and he was unable to contact his supervisor until later that morning. Witness
statements from his coworkers, Mr. Caiazzo and Mr. Hightower, also support that appellant left
work on August 3, 2007 and needed help getting to and into his car. While both coworkers and
appellant’s former supervisor did not appear to have any knowledge of an injury sustained on
August 3, 2007, it is not necessary to have an injury confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty. The record
further reflects appellant sought care from the emergency department on August 7, 2007 for
moderate back pain which started five days prior and thereafter he sought care from
Dr. Filippone, who indicated that appellant was last able to work on August 3, 2007.
An employee’s statement alleging that an incident 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.13 The factual evidence of record is consistent in describing that appellant stopped
work due to back pain beginning August 3, 2007. The Board finds that there is no strong or
persuasive evidence refuting that appellant sustained the August 3, 2007 incident, as alleged.
Consequently, the Board finds that he sustained the incident at work at the time, place and in the
manner, as alleged.
CONCLUSION
The Board finds that appellant met his burden of proof to establish that he sustained a low
back condition causally related to his August 3, 2007 employment incident.

13

M.H., supra note 8; Bill H. Harris, 41 ECAB 216 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 17, 2010 is affirmed, as modified. The case is remanded to the Office
for further action in conformance with this decision.
Issued: May 13, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, KIRKWOOD POST
OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0255
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On November 14, 2019 appellant, through counsel, filed a timely appeal from an
October 24, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a re currence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the
patella due to factors of her federal employment, including continuous walking, standing, stair
climbing, and carrying a mail satchel. She noted that she first became aware of her condition and
its relation to her federal employment on February 6, 2004. On the reverse side of the claim form,
appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with
restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim
for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.
On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work
restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent
standing for two hours, and operating a motor vehicle for one hou r. She also provided lifting
restrictions of no more than 10 pounds.
In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as
tarsal tunnel syndrome and opined that appellant was totally disabled from work from
September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular
work on January 9, 2015.
On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form
CA-7) for total disability beginning September 25, 2014 through January 9, 2015.
In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence supporting her
claim for total disability beginning September 25, 2014. OWCP further provided appellant with a
questionnaire for completion and requested a report from her physician addressing the relationship
between her disability and her employment injury. It afforded her 30 days to submit the necessary
evidence. No response was received.
By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total
disability commencing September 25, 2014.
On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision
and submitted additional evidence in support of her claim.
An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study
demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left.
In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally
disabled and released her to work without restrictions on November 3, 2014 and December 12,
2014, respectively. On January 29, 2015 she found appellant disabled from work for the period
September 25, 2014 through March 2, 2015.
2

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She
related that appellant felt her foot pain was extreme, but that she was spending very little time on
her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and
the second metatarsal head as well as the right second intermetatarsal space. She also reported a
positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial
tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing
chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel
decompression. She noted that appellant was no longer taking prescribed pain medication, which
had relieved some of her foot pain.
On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel
syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On
March 2, 2015 she again found that appellant was totally disabled from work for the period
September 25, 2014 through June 25, 2015.
On February 13, 2015 appellant responded to OWCP’s development questionnaire and
submitted additional medical evidence. She attributed her recurrence of total disability on
September 25, 2014 to chronic changes from tarsal tunnel syndrome.
On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.
Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.
On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for
the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13,
2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that
appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015.
Through a separate July 13, 2015 form report, she found that she could returned to light-duty work
with her prior restrictions.
On July 15, 2015 the employing establishment offered appellant a permanent light-duty
position as an accounting support technician. Appellant accepted the position on that date.
In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky
diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a
positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating
that appellant’s condition was caused or aggravated by employment activities and listed walking,
standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally
disabled for the period September 25, 2014 through July 13, 2015.
By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015
decision.
On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also
provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which
demonstrated mild intermetatarsal bursitis situated between the heads of the second and third
metatarsals.
On December 9, 2016 appellant provided additional physical therapy notes from
Mr. Harthill.
3

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for
tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from
walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed
her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal
spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that
appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on
physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon
palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant
was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that
she had a neurological origin for her pain, which was why she recommended tarsal tunnel
decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014
through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off
work with rest and pain medication would help her functionally.
On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.
By decision dated November 16, 2017, OWCP denied modification.
In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous
worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her
unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in
the right intermetatarsal space and the right third intermetatarsal space that was consistent with
radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination
she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain
upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third
intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation
of the tarsal tunnel, flexor hallucis brevis, and the arch.
On September 27, 2018 appellant, through counsel, requested reconsideration.
By decision dated February 25, 2019, OWCP denied modification.
OWCP continued to receive medical evidence. In a report dated April 16, 2019,
Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She
noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed
unspecified mononeuropathy of the right lower limb.
On August 26, 2019 appellant, through counsel, requested reconsideration of the
February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and
Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through
December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet
appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.
On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she
had not sought treatment for several years. She recounted that appellant reported throbbing,
shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right.
Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but
noted that she continued performing light-duty work. On physical examination Dr. Kaminsky
noted no overt deformities and normal arch structure. She found pain upon compression of the
common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one
4

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly
bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic
ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except
for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy.
She also reported that her neurological examination was normal, but recommended an EMG study.
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because
of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He
reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense
area being the second intermetatarsal space bilaterally.
In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s
description of her foot pain. On physical examination, she found the same pain pattern as
demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal
tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical
examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal
tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the
feet bilaterally. She concluded that appellant had failed conservative care and needed to consider
surgical correction.
On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second
toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of
the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on
December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of
her right second toe. She opined that appellant’s problem was not caused by the injury to the right
second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was
not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second
metatarsal phalangeal joint.
By decision dated October 24, 2019, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee ha s returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work when a light-duty assignment, made
specifically to accommodate an employee’s physical limitations due to work-related injury or
illness, is withdrawn or altered so that the assignment exceeds the employee ’s physical limitations.
A recurrence does not occur when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020).

5

Id.

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When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 7 Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty work requirements. Additionally, there
is no indication in the record that the employing establishment withdrew a light-duty work
assignment. The remaining issue is whether the medical evidence demonstrated a worsening of
appellant’s accepted bilateral foot conditions such that she could not perform limited -duty work.
After returning to part-time limited-duty work on May 22, 2010, appellant again sought
medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky
diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot
pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought
treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky
diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally
disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an
opinion on causal relationship between appellant’s claimed disability and factors of her federal
employment. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value. 9 As such, these reports
are of no probative value and do not establish appellant’s disability claim.
In a series of reports, she attributed appellant’s disability from work to chronic changes
from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of
pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate
from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination
6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); Ronald A. Eldridge, 53 ECAB 218 (2001); Mary A. Ceglia,
Docket No. 04-0113 (issued July 22, 2004).
8

Id.

9

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

6

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial
tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a
compensable medical diagnosis. 10 Dr. Kaminsky did not provide medical rationale supporting an
objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015
such that appellant could no longer perform her modified-duty position. The Board has held that
reports are of limited probative value regarding causal relationship if they do not contain medical
rationale explaining how a given medical condition/disability was related to the accepted
employment injuries.11
In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes
from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and
musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by employment activities and listed walking, standing and weight bearing of postal equipment. Dr. Kaminsky found that she was totally disabled from
September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal
relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries resulted in the period of disability, is of diminished probative value and
insufficient to establish causal relationship.12
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of
increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally.
However, he did not address whether appellant was disabled from work during the claimed period.
As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish
her claim.13
Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any period of disability. 14 These reports are therefore insufficient to establish the claim.

10

R.S., Docket No. 19-1131 (issued April 2, 2020).

11

G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
12

J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).
13

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8,
2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

7

Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical
therapists are not considered physicians under FECA, his reports are insufficient to establish
entitlement to compensation benefits. 15
As the medical evidence of record is insufficient to establish a recurrence of disability from
work for the period September 25, 2014 through July 14, 2015 causally related to the accepted
employment conditions, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.

Section 8101(2) of FECA provides that a physician includes: “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.B., supra note 12; T.K., Docket No. 19-0055 (issued
May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants,
and physical therapists are not competent to render a medical opinion under FECA).
15

8

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, DOVER POST
OFFICE, Dover, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0625
Issued: November 6, 2020

Case Submitted on the Record

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

JURISDICTION
On January 27, 2020 appellant filed a timely appeal from an August 28, 2019 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition causally related to the accepted factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the August 28, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 24, 2019 appellant, then a 62-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed a sharp pain in his left shoulder due to factors of
his federal employment. He noted that he first became aware of his condition and realized its
relationship to his federal employment on April 27, 2019. Appellant stopped work on
May 4, 2019.
In a June 6, 2019 medical report, Christopher L. Wheeler, a certified physician assistant,
noted that appellant was seen for evaluation of left shoulder pain. He indicated that appellant had
a previous history of shoulder pain about four to five years ago that was resolved with physical
therapy. Mr. Wheeler observed that appellant experienced a sharp pain when he raised his arm
away from his side, but no numbness or tingling. He diagnosed left shoulder rotator cuff strain.
In a medical note of even date, Mr. Wheeler again diagnosed left shoulder rotator cuff strain and
provided work restrictions.
In an undated statement, appellant indicated that he first noticed having a slight ache in his
left shoulder on April 27, 2019. He asserted that this ache progressed into a more intense ache,
eventually becoming a sharp pain. Appellant noted that his x-rays revealed a bone spur and
inflamed rotator cuff. He noted that his doctor recommended physical therapy. In separate
undated statement, appellant listed his job duties as a letter carrier, noting that all of his duties
required constant movement from left to right and down. He indicated that his route had about
600 parcel deliveries, often requiring him to climb three flights of stairs.
In a development letter dated June 6, 2019, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and attached a questionnaire for his completion. In a
separate development letter of even date, OWCP requested that the employing establishment
provide additional information, including comments from a knowledgeable supervisor and an
explanation of appellant’s work activities. It afforded both parties 30 days to submit the necessary
evidence.
In a May 22, 2019 patient intake form, appellant noted that his injury was caused by
constant use of his left shoulder at work. In a report of even date, Mr. Wheeler conducted a
physical examination, which revealed mild tenderness to bicipital groove and greater tuberosity,
but no other obvious deformity in the left shoulder. He diagnosed left shoulder rotator cuff strain
with impingement. In a state workers’ compensation medical form of even date, Mr. Wheeler
again diagnosed left rotator cuff strain.
In a June 12, 2019 state workers’ compensation medical form, Mr. Wheeler reiterated his
diagnosis and released appellant to work with restrictions.
Appellant underwent physical therapy treatments from June 17 through August 9, 2019.
A June 20, 2019 left shoulder magnetic resonance imaging (MRI) scan revealed a
supraspinatus tendon tear, mild peritendinobursitis, and mild acromioclavicular arthropathy.
In an undated letter, the employing establishment controverted appellant’s claim, noting
that he previously called in sick on April 20, 2019 describing a sharp pain in his shoulder while at
2

home. It indicated that appellant was currently only casing mail with no street duties. The
employing establishment also provided a job description for a city carrier.
In a June 26, 2019 patient intake form, appellant repeated that his injury was caused by
constant use of his left shoulder at work. In a state workers’ compensation medical form of even
date, Dr. Joshua A. Siegel, a Board-certified orthopedic surgeon, noted that appellant reported that
he developed a sharp pain in the left shoulder starting on April 27, 2019. He diagnosed left partial
rotator cuff tear and released appellant to work with restrictions. In a medical report of even date,
Dr. Siegel opined that repetitive work at the employing establishment over a course of months
caused appellant’s left shoulder condition. He noted that appellant originally had a walking mail
route and was supporting a lot of mail with his left arm and that currently he was driving and
reaching with his left arm. Dr. Siegel reviewed appellant’s MRI scan and conducted a physical
examination, which revealed a positive impingement and mild tenderness over the
acromioclavicular joint. He diagnosed impingement rotator cuff tendinopathy and a partialthickness tear.
On July 9, 2019 appellant accepted an offer of modified assignment to work a limited-duty
position casing mail.
In a July 15, 2019 medical form report, cosigned by an unidentifiable healthcare provider,
Mr. Wheeler diagnosed a supraspinatus tendon tear and provided work restrictions.
In a July 22, 2019 patient intake form, appellant again noted that his injury was caused by
his work. In a state workers’ compensation medical form of even date, Dr. Siegel reiterated his
diagnosis. In a medical report of even date, he indicated that appellant previously had similar
shoulder pain in 2016, which he reported was getting mildly worse over time. Dr. Siegel conducted
a physical examination, which still revealed positive impingement and tenderness over
acromioclavicular joint in the left shoulder. He noted that the acromioclavicular joint was more
symptomatic. Dr. Siegel diagnosed mild acromioclavicular joint arthrosis and impingement and
discussed with appellant the possibility of undergoing an arthroscopy.
In an undated state workers’ compensation medical form, Dr. Siegel noted that appellant
began experiencing a sharp pain on April 27, 2019 and provided work restrictions.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence was insufficient to establish causal relationship between
appellant’s diagnosed left shoulder condition and the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
3

Supra note 1.

4

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.9
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted a series of medical reports from Dr. Siegel. In
state workers’ compensation medical forms dated from June 26 through July 22, 2019, Dr. Siegel
did not offer an opinion on causal relationship. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value

5

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

A.O., Docket No. 20-0038 (issued August 26, 2020); B.H., Docket No. 18-1693 (issued July 20, 2020); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013)..

4

on the issue of causal relationship.11 Thus, this evidence is insufficient to establish appellant’s
claim.
In medical reports dated from June 26 through July 22, 2019, Dr. Siegel provided multiple
diagnoses related to appellant’s left shoulder condition and noted that appellant previously had
similar shoulder pain, which had mildly worsened over the years. He opined that repetitive work
at the employing establishment over a course of time caused appellant’s condition. While in his
narrative reports Dr. Siegel supported causal relationship, he did not provide medical rationale
explaining the basis of his conclusory opinion regarding the causal relationship between
appellant’s left shoulder condition and the accepted factors of his federal employment.12 The
Board has held that a medical opinion is of limited probative value if it is conclusory in nature.13
A medical opinion must explain how the implicated employment factors physiologically caused,
contributed to, or aggravated the specific diagnosed conditions.14 Further, as noted above, a wellrationalized opinion is particularly important since appellant has a history of left shoulder pain
from years ago.15 For these reasons, Dr. Siegel’s reports are insufficient to meet appellant’s burden
of proof.16
Appellant also submitted a medical report from an unidentifiable healthcare provider. The
Board has held that reports that bear illegible signatures cannot be considered probative medical
evidence because they lack proper identification that the author is a physician.17 Therefore, this
report is also insufficient to establish the claim.
The record also contains a series of reports from a physician assistant and a physical
therapist. Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.18
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.19

11

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

Id.

13

C.M., Docket No. 19-0360 (issued February 25, 2020).

14

Id.

15

Supra note 11.

16

L.J., supra note 6.

17

J.P., Docket No. 19-0197 (issued June 21, 2019).

18

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013). See also T.W., Docket No. 19-1412 (issued February 3, 2020); K.W., 59 ECAB
271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA); D.H., Docket No. 180072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA).
19

5

Finally, appellant also submitted a June 20, 2019 left shoulder MRI scan. However, the
Board has held that reports of diagnostic tests, standing alone, lack probative value as they do not
provide an opinion on causal relationship between accepted employment conditions and a given
claimed period of disability.20 Therefore, this evidence is also insufficient to establish appellant’s
claim.
As there is no rationalized medical evidence of record explaining how appellant’s accepted
factors of his employment caused or aggravated his condition, the Board finds that he has not met
his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

S.K., Docket No. 19-0272 (issued July 21, 2020); A.V., Docket No. 19-1575 (issued June 11, 2020).

6