United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kenosha, WI, Employer
__________________________________________

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

Docket No. 19-1339
Issued: March 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 4, 2019 appellant, through counsel, filed a timely appeal from an April 5, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted December 18, 2016 employment incident.
FACTUAL HISTORY
On December 20, 2016 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 18, 2016 she experienced lower left-sided back pain
and left-sided sciatica when she twisted as she was transferring a heavy parcel from a long-life
vehicle (LLV) to a dock while in the performance of duty. She stopped work on the filing date of
her claim. On the reverse side of the claim form, the employing establishment controverted the
claim, contending that the claimed injury was caused by appellant’s own conduct as she knew the
package was heavy because she obtained help to load it. It questioned why she had not gotten help
to unload the package.
In an accompanying narrative statement, appellant reiterated her history of injury on
December 18, 2016. She also reported that, after injuring herself, someone helped her put the
parcel back by the correct route. Further, appellant indicated that, although she was limping, she
went back out to deliver more parcels.
In support of her claim, appellant submitted medical reports and patient discharge
instructions dated December 20, 2016 from Dr. Brian Piechowski, Board-certified in emergency
medicine. Dr. Piechowski reported that on December 18, 2016 she turned and pulled something
while taking a parcel off an LLV and placing it onto a dock. He described clinical findings and
diagnosed acute left-sided low back pain with left-sided sciatica. Dr. Piechowski noted that the
diagnosed condition was work related. He further noted that appellant was totally incapacitated
and unable to work.
OWCP thereafter received a December 27, 2016 lumbar spine magnetic resonance imaging
(MRI) scan report by Dr. Stephen J. Pomeranz, a Board-certified diagnostic radiologist.
Dr. Pomeranz concluded that the MRI scan demonstrated satisfactory postoperative changes at
L4-5. He also concluded that there were degenerative changes elsewhere. Dr. Pomeranz noted
that at L3-4, there was mild anterolisthesis of L3 on L4. There was also concentric disc
displacement with facet arthropathy and hypertrophy of the ligamentum ﬂavum. Dr. Pomeranz
determined that these ﬁndings in combination resulted in moderate bilateral lateral recess and
neural foraminal narrowing without canal stenosis.
In a December 20, 2016 lumbar spine x-ray report, Dr. James E. Tomic, a Board-certified
diagnostic radiologist, provided an impression of relatively pronounced chronic and postsurgical
changes without frank acute bony abnormality.
In a December 22, 2016 report, Dr. Michael Didinsky, an attending Board-certified
orthopedic surgeon, noted appellant’s complaint of work-related left-sided low back and buttock
pain. He further noted a history of injury that on December 18, 2016 she was moving a heavy
parcel at work and she turned and twisted to set the package down, she felt immediate pain in her
left buttock region that radiated into her left groin region. Appellant related to Dr. Didinsky that

2

she had been off work since her injury. Dr. Didinsky discussed findings on physical and x-ray
examinations. He provided an impression of severe right buttock pain, either an L3 radicular pain
versus post-traumatic sacroiliitis. Dr. Didinsky also provided an impression of degenerative
lumbar scoliosis 41 degrees above a previous L4 through S1 fusion. He advised that appellant
could return to sedentary work duties with restrictions. In a December 22, 2016 work release form,
Dr. Didinsky indicated that her work status was temporary until her next appointment. On
December 29, 2016 he reexamined appellant and provided an assessment of left post-traumatic
sacroiliitis, noting that this was her likely diagnosis versus an atypical leg radiculopathy. On
January 16, 2017 Dr. Didinsky reported a diagnosis of S1 joint dysfunction and ordered appellant
to undergo a spine rehabilitation program, three times a week for four weeks.
In a report and return to work form dated December 22, 2016, Dr. James C. Foster, Boardcertified in occupational medicine, noted a history of injury that on December 18, 2016 appellant
injured her low back and buttock at work when she turned while lifting a package. He reported
examination findings and diagnosed acute left lower back pain. Dr. Foster indicated that appellant
was totally incapacitated and unable to work through December 29, 2016.
A January 17, 2017 report signed by a physical therapist noted appellant’s diagnosis of
lumbar S1 joint dysfunction and discussed her treatment.
OWCP, in a January 20, 2017 development letter, advised appellant that, when her claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work. It further advised that, because she had not returned to full-time work, her claim would be
formally adjudicated. OWCP also advised appellant of the type of medical evidence needed to
establish her claim. It afforded her 30 days to submit the necessary medical evidence.
Daily notes dated January 17 through 30, 2017 were received from the same physical
therapist who continued to note appellant’s diagnosis of lumbar S1 joint dysfunction and discuss
her treatment.
In additional work release forms dated December 27, 2016 and January 5, 2017,
Dr. Didinsky reiterated his prior diagnosis of left S1 joint dysfunction. He also diagnosed low
back pain with leg adenopathy. Dr. Didinsky advised that appellant was temporarily unable to
work. In a procedure note dated January 4, 2017, he provided a preprocedure and postprocedure
diagnosis of sacroiliitis/sacroiliac joint dysfunction and performed a sacroiliac injection under
fluoroscopy. On January 31, 2017 Dr. Didinsky again diagnosed left S1 joint dysfunction and
ordered a left S1 joint injection to be performed on February 3, 2017.
A report and work release form dated January 16, 2017 signed by Karen J. Stevens, a
certified physician assistant, provided examination findings and diagnosed left post-traumatic
sacroiliitis. She indicated that the diagnosed condition was work related. Ms. Stevens
recommended that appellant remain off work until her next evaluation in four weeks.
By decision dated February 27, 2017, OWCP accepted that the December 18, 2016
employment incident occurred as alleged, that a medical condition had been diagnosed, and that
appellant was in the performance of duty. However, it denied the claim finding that the medical
evidence submitted was insufficient to establish that the diagnosed medical condition was causally

3

related to the accepted employment incident. OWCP concluded therefore that the requirements
had not been met to establish an injury as defined by FECA.
OWCP continued to receive daily notes dated February 22 through March 2, 2017 from the
same physical therapist.
OWCP also received an additional procedure note dated February 10, 2017 from
Dr. Didinsky who continued to perform a left sacroiliac injection under fluoroscopy to treat
appellant’s sacroiliitis/sacroiliac joint dysfunction.
A February 16, 2017 report signed by Dana Stout, an advanced practice nurse practitioner,
provided examination findings and diagnosed left post-traumatic sacroiliitis. She indicated that
the diagnosed condition was work related.
In another report also dated December 20, 2016, Dr. Piechowski reiterated his prior
diagnosis of acute left-sided low back pain with left-sided sciatica.
Ms. Stevens, in a March 16, 2017 report, again noted her diagnosis of work-related left
post-traumatic sacroiliitis. In a work release form also dated March 16, 2017, she diagnosed left
S1 joint dysfunction and noted that appellant could temporarily perform modified duties until her
next appointment in four weeks.
On May 11, 2017 appellant requested reconsideration regarding the February 27, 2017
decision and submitted additional medical evidence.
In letters dated March 9 and 16, 2017, Dr. Didinsky opined that, based on his review of the
medical record and examination findings that, to a reasonable degree of medical certainty,
appellant’s left buttock pain and left S1 joint post-traumatic sacroiliitis were directly caused by the
accepted December 18, 2016 employment incident. Regarding the latter condition, he indicated
that, if a different diagnosis was preferred, it would be sacroiliac sprain. In a May 19, 2017
procedure note, Dr. Didinsky performed a sacroiliac injection under fluoroscopy to treat
appellant’s sacroiliitis/sacroiliac joint dysfunction.
In a March 9, 2017 operative report, Dr. Michael J. Slimack, a Board-certified orthopedic
surgeon, noted that appellant’s preoperative and postoperative diagnosis was retained painful
hardware, left patella. He performed a removal of a screw from the left patella.
In reports and work release forms dated April 13, May 11, and June 8, 2017, Ms. Stout
diagnosed left S1 joint post-traumatic sacroiliitis/left S1 joint dysfunction and muscle spasms to
the right flank. She indicated that these conditions were related to appellant’s December 18, 2016
work injury. Ms. Stout initially advised that appellant could temporarily perform modified duties
with restrictions and subsequently advised that she could return to full duties with no restrictions.
OWCP, by decision dated August 2, 2017, denied modification of its prior February 27,
2017 decision.
In a July 27, 2017 report, Dr. Didinsky discussed findings on physical and x-ray
examination. He provided an assessment of right T10-T11 right-sided foraminal stenosis.

4

Dr. Didinsky also provided an assessment of unrelenting right inferior rib pain since last year,
despite a cholecystectomy and an evaluation by several physicians and emergency room visits. In
a letter dated August 31, 2017, he clarified his prior opinion on causal relationship. Dr. Didinsky
noted that appellant underwent a previous L4 through S1 fusion in 2008 performed by
Dr. Spencer J. Block, a neurosurgeon. He also noted that she had arthritic changes above the
fusion area, including a degenerative scoliosis. Dr. Didinsky related that, prior to twisting while
lifting the heavy parcel, appellant experienced immediate pain in her left buttock, which still
bothered her. He indicated that, based on all the information he had and obtained from her, she
did not have problems with left buttock pain prior to the lifting incident. Dr. Didinsky further
indicated that S1 joint injections had helped signiﬁcantly, albeit temporary relief. He believed that
appellant was a candidate for left S1 joint radiofrequency or a stabilization procedure.
Dr. Didinsky opined that the December 2016 injury was a direct cause of her left sacroiliitis. He
recognized that appellant had a previous lumbar surgery and degenerative changes above the L4
through S1 fusion, however, he maintained that they did not appear to be the cause of her current
symptoms. Therefore, Dr. Didinsky concluded that her work-related injury was the cause of her
sacroiliitis and symptoms that necessitated a more aggressive intervention, including
radiofrequency ablation and if that failed, then a S1 joint stabilization procedure.
In a procedure note dated August 1, 2017, Dr. Hardik A. Vashi, a Board-certified
physiatrist, provided a preprocedure and postprocedure diagnosis of thoracic radiculopathy/spinal
stenosis and performed an interlaminar epidural steroid injection under fluoroscopy.
Ms. Stout, in an August 17, 2017 report, provided an assessment of right T10-T11 rightsided foraminal stenosis that had improved with a right T10-T11 epidural steroid injection. She
also provided an assessment of persistent sacroiliac joint pain.
In reports and progress notes dated September 11 through November 2, 2017, Dr. Foster
provided assessments of status post fall, postconcussive syndrome, cervical strain, headache,
cervicogenic aspect, anxiety, contusion/hematoma to the chin that was resolving, left knee
contusion, and chronic back pain that temporarily aggravated a preexisting back condition.
On December 11, 2017 appellant requested reconsideration regarding the August 2, 2017
decision and resubmitted Dr. Didinsky’s August 31, 2017 letter.
OWCP, by decision dated March 8, 2018, denied modification of its August 2, 2017
decision.
Appellant requested reconsideration on May 8, 2018.
In an April 20, 2018 letter, Dr. Didinsky noted that the most common causes of a S1 joint
injury were twisting, turning, and lifting-type maneuvers. He advised that appellant’s mechanism
of injury was consistent with the mechanism capable of causing a S1 joint problem.
By decision dated August 8, 2018, OWCP again denied modification of its prior decisions.
OWCP received an August 31, 2018 report from Ms. Stevens who continued to diagnose
work-related left S1 joint dysfunction.

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Dr. Didinsky, in a January 17, 2019 letter, reiterated his prior opinion that appellant’s left
S1 joint post-traumatic sacroiliitis was caused by the December 18, 2016 employment incident.
He also reiterated his explanation that a sacral injury usually occurred with a twisting, turning, and
bending combination. Dr. Didinsky noted that appellant was asymptomatic in the S1 joint prior to
these movements and became symptomatic after the stated work incident and received
conservative care. He concluded that, within a reasonable degree of medical certainty, the workrelated injury caused her sacroiliitis.
By decision dated April 5, 2019, OWCP again denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occurred.8 The
second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a

3

Id.

4
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

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complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted December 18, 2016 employment incident.
Appellant submitted a series of reports by Dr. Didinsky. In reports dated March 9 and 16,
and August 31, 2017, April 20, 2018, and January 17, 2019, Dr. Didinsky opined that her left
buttock pain and left S1 joint post-traumatic sacroiliitis and need to undergo left S1 joint
radiofrequency or a stabilization procedure were directly caused by the accepted December 18,
2016 employment incident. He maintained that appellant’s mechanism of injury was consistent
with the mechanism that caused a S1 joint problem, which involved a combination of twisting,
turning, lifting, and bending. Dr. Didinsky further maintained that, although she had undergone a
L4 through S1 fusion in 2008 and subsequently developed arthritic changes above the fusion area
that included degenerative scoliosis, the surgery and resultant condition did not appear to be the
cause of her current conditions. He also maintained that appellant’s left buttock pain had begun
after the December 18, 2016 employment incident. The Board finds that, while his opinion is
generally supportive of causal relationship, Dr. Didinsky has not provided adequate medical
rationale explaining the basis of his opinion. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was related to employment factors.13 As such, the Board
finds that Dr. Didinsky’s March 9 and 16, and August 31, 2017, April 20, 2018, and January 17,
2019 reports are insufficient to meet appellant’s burden of proof.
In his remaining reports, Dr. Didinsky reiterated the history of the accepted December 18,
2016 employment incident and his diagnosis of sacroiliitis/sacroiliac dysfunction. He also
diagnosed severe right buttock pain, low back pain with leg adenopathy, and right T10-T11 rightsided foraminal stenosis. In addition, Dr. Didinsky addressed appellant’s disability from work,
and work restrictions. These additional reports do not contain a specific opinion as to the cause of
the diagnosed conditions and resultant disability. 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

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).

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on the issue of causal relationship.14
appellant’s claim.

These reports therefore are insufficient to establish

Likewise, the reports and progress notes from Drs. Foster, Slimack, and Vashi, which
addressed appellant’s back, head, cervical, chin, left knee, thoracic, and emotional conditions,
disability from work, and medical treatment also are deficient as these reports and progress notes
do not contain an opinion regarding causal relationship.15
While Dr. Piechowski opined, in reports and patient discharge instructions dated
December 20, 2016, that appellant sustained acute left-sided low back pain with left-sided sciatica
due to the December 20, 2016 employment incident and continued to be totally disabled from
work, he failed to provide the necessary medical rationale to establish causal relationship. The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition/disability was related to
employment factors.16 Thus, the Board finds that Dr. Piechowski’s reports are insufficient to
establish appellant’s claim.
Appellant submitted diagnostic test reports dated December 20 and 27, 2016 from
Dr. Tomic and Dr. Pomeranz. The Board has held that diagnostic studies lack probative value on
the issue of causal relationship as they do not address whether the employment incident caused
any of the diagnosed conditions.17 Such reports are therefore insufficient to establish appellant’s
claim.
Appellant also submitted reports signed solely by a physician assistant or nurse
practitioner, who found that she had left post-traumatic sacroiliitis due to the December 18, 2016
employment injury. The Board has held that medical reports signed solely by a physician assistant
or nurse practitioner are of no probative value as physician assistants and nurse practitioner are not
considered physicians as defined under FECA and are therefore not competent to render a medical
opinion.18 These reports are therefore insufficient to establish the claim.

14

F.D., Docket No. 19-0932 (issued October 3, 2019); A.L., Docket No. 18-1756 (issued April 15, 2019); K.E.,
Docket No. 18-1357 (issued March 26, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).
15

Id.

16

J.G., Docket No. 19-1116 (issued November 25, 2019); Y.D., supra note 13.

17

See F.D., supra note 14; B.C, Docket No. 18-1735 (issued April 23, 2019); J.S., Docket No. 17-1039 (issued
October 6, 2017).
18

5 U.S.C. § 8101(2) 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.
See id. at § 8102(2); 20 C.F.R. § 10.5(t); T.W., Docket No. 19-0677 (issued August 16, 2019). Lay individuals such
as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA.
S.P., Docket No. 19-0819 (issued January 10, 2020) (physician assistant); C.S., Docket No. 19-1279 (issued
December 30, 2019) (nurse practitioner).

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As there is no well-reasoned medical opinion establishing appellant’s claim for
compensation the Board finds that she has not met her burden of proof.19
On appeal, counsel contends that OWCP failed to adjudicate the claim in accordance with
the proper standard of causation and to give due deference to the findings of the attending
physician. He has not, however, provided any evidence to support his arguments. As discussed
above, Dr. Didinsky did not provide a rationalized opinion sufficient to establish that appellant’s
diagnosed back, buttock, leg, and thoracic conditions were caused or aggravated by the accepted
December 18, 2016 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted December 18, 2016 employment incident.

19
F.D., supra note 14; D.N., Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued
December 31, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the April 5, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POSTAL VEHICLE
SERVICE, Indianapolis, IN, Employer
__________________________________________

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Appearances:
Lana Kirby, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1403
Issued: December 7, 2012

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 June 15, 2012 appellant, through his representative, filed a timely appeal of an
April 24, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration without further merit review. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than 180 days elapsed from April 21, 2011, the date of the most
recent merit decision and April 24, 2012, the Board lacks jurisdiction to review the merits of the
case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant originally requested oral argument. The Clerk of the Board mailed a letter dated June 27, 2012 to his
representative asking to confirm a continuing desire for an oral argument held in Washington, DC. Since no written
response was received, the Board has decided the appeal on the record.

FACTUAL HISTORY
On October 26, 2010 appellant, then a 55-year-old tractor-trailer operator, filed a
traumatic injury claim alleging that he sustained back and left leg pain that day when he pushed
an all-purpose container that was rendered immobile by a broken wheel. He stopped work
immediately and did not return.3
In Part B of a Form CA-16 (“Attending Physician’s Report”) dated October 27, 2010,
Dr. Douglas K. Bullington, a family practitioner, related that appellant, who injured his lower
back while pushing a cart on October 26, 2010, would be disabled from October 27 to
November 2, 2010 and thereafter limited to light duty for two weeks. He noted that appellant
previously underwent back surgery. Dr. Bullington diagnosed sciatica and checked the “yes”
box in response to a form question asking whether this condition was caused or aggravated by
employment activity.4 In a November 1, 2010 duty status report, he added that he elicited a
positive left straight leg raise test and sciatic notch tenderness on examination.5
Dr. William J. Thoman, a neurosurgeon, remarked in a November 8, 2010 report that
appellant underwent multiple lumbar discectomies and anterior/posterior L4-5 and L5-S1 fusion
surgery in 1987. He was pushing a heavy cart on October 26, 2010 when one of the wheels
broke. When appellant tried to grab hold of the cart before it tipped over, he experienced back
and left leg pain. A few days later, the pain radiated to the right leg. On examination,
Dr. Thoman observed lumbar paraspinous muscle tenderness, bilateral plantar flexor weakness
and a positive Patrick’s test. A computerized tomography (CT) scan of the lumbar spine
exhibited L3-4 degenerative disc disease and L4-5 pseudoarthrosis.6 Dr. Thoman diagnosed
industrial lower back and leg pain.
In a November 16, 2010 report, Dr. Jose C. Vitto, a Board-certified anesthesiologist to
whom appellant was referred by Dr. Thoman, reviewed appellant’s medical history. Physical
examination findings were unremarkable. Dr. Vitto diagnosed L3-4 spinal stenosis, degenerative
disc disease, lumbago and possible lumbar radiculopathy.
OWCP informed appellant in a December 6, 2010 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a medical report from a qualified
physician explaining how the October 26, 2010 employment incident caused or contributed to a
diagnosed condition.7

3

Appellant retired effective March 31, 2011.

4

Appellant’s supervisor signed Part A of the Form CA-16 on October 26, 2010.

5

The case record also contains Dr. Bullington’s notes for the period October 27 to November 30, 2010, which
essentially incorporated the above-mentioned findings.
6

The case record contains a November 4, 2010 CT scan report from Dr. Mary E. Below, a Board-certified
diagnostic radiologist.
7

OWCP pointed out that the claim was originally received as a simple, uncontroverted case resulting in minimal
or no lost time from work and payment was approved for limited medical expenses without formal adjudication.

2

In a December 23, 2010 report, Dr. Thoman opined that appellant experienced “a flare-up
from his known history of back pain” that “could be partially irritation of the S1 nerve from his
previous fusion when he hurt himself at work.”
By decision dated January 14, 2011, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted October 26, 2010 employment incident
caused or aggravated a back and bilateral leg condition.
Appellant requested reconsideration on February 3, 2011, asserting that OWCP did not
properly consider the medical evidence and that the October 26, 2010 work event aggravated a
preexisting industrial back injury sustained on August 4, 1984.8 He pointed out that he was
asymptomatic prior to the flareup.
On April 21, 2011 OWCP denied modification of the January 14, 2011 decision.
Appellant requested reconsideration on April 16, 2012, but did not present any additional
evidence or legal argument. By decision dated April 24, 2012, OWCP denied his request on the
grounds that it did not receive new and relevant evidence warranting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(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.10 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.11
ANALYSIS
By decisions dated January 14 and April 21, 2011, OWCP denied appellant’s traumatic
injury claim on the grounds that the medical evidence did not sufficiently establish that the
accepted October 26, 2010 employment incident caused or aggravated a back and bilateral leg
condition. Appellant requested reconsideration on April 16, 2012, but did not submit any
additional evidence or legal argument before the issuance of the April 24, 2012 nonmerit
decision. Because he failed to meet one of the standards enumerated under section 8128(a) of
FECA, he was not entitled to further merit review of his claim.

8

OWCP File No. xxxxxx557.

9

5 U.S.C. § 8128(a).

10

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

11

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

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Appellant contends on appeal that he offered medical documentation and legal
contentions in support of his April 16, 2012 reconsideration request. The Board notes that the
case record does not contain such evidence.12 Therefore, OWCP properly denied the application
without reopening the case for a review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2012
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

12

The Board notes that appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

4


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

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

Docket No. 20-0530
Issued: December 9, 2020

Case Submitted on the Record

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

JURISDICTION
On January 9, 2020 appellant filed a timely appeal from a July 25, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted June 6, 2018 employment incident.
FACTUAL HISTORY
On June 29, 2018 appellant, then a 54-year-old senior systems accountant, filed a traumatic
injury claim (Form CA-1) alleging that on June 6, 2018 she twisted her left knee, bruised her lower

1

5 U.S.C. § 8101 et seq.

back, and hit her head when she passed out twice in a restroom stall after donating blood while in
the performance of duty. She did not stop work.
In a June 11, 2018 report, Dr. David Anderson, a Board-certified orthopedic surgeon, noted
that appellant sustained a syncopal event recently after giving blood. He indicated that she did not
know exactly what happened to her knee, but she had immediate and significant pain when she
stood and walked following her fall. Dr. Anderson diagnosed left knee pain.
In a report dated June 25, 2018, Robbin Dale Ghere, a physician assistant, indicated that
appellant was seen in the emergency department on June 16, 2018 after dizziness with numbness,
which she indicated began shortly after donating blood. She reported that appellant had felt a bit
dizzy and decided to go to the restroom where she passed out in the stall and woke up on the floor.
A June 25, 2018 x-ray of the sacrum and coccyx showed no sacrococcygeal fracture.
A magnetic resonance imaging (MRI) scan of the left knee dated June 26, 2018 revealed a
high-grade tear of the medial retinaculum/medial patellofemoral ligament (MPFL) involving the
femoral attachment, sprain of the superficial component of the medial collateral ligament (MCL),
1.0 x 1.0 cm area of grade II chondromalacia, and small to moderate joint effusion.
A June 26, 2018 MRI scan of the lumbar spine demonstrated Scheuermann’s-like changes
with multilevel disc degeneration, broad-based left-sided lateral herniated nucleus pulposus (HNP)
at L4-5 with moderate foraminal stenosis and ganglionic impingement, but no demonstrable
fracture.
In a July 2, 2018 report, Dr. Anderson noted that appellant was seen in follow up for
persistent pain in her left knee. He diagnosed left knee MCL sprain, MPFL sprain, medial
retinaculum sprain, and medial and patellofemoral chondromalacia.
On July 10, 2018 Ms. Ghere indicated that appellant had been recently hospitalized for an
acute thalamic stroke.
In a July 16, 2018 report, Kari Fernholz, a physician assistant, indicated that appellant had
been seen on June 11 and July 2, 2018 and had no work restrictions.
On August 20, 2018 Ms. Ghere noted that appellant had been seen in her clinic on June 25,
2018 and reported that she had donated blood at work and fainted in the restroom, possibly hitting
her head. She also indicated that subsequently appellant was transported to the emergency
department on June 15, 2018 by a coworker after experiencing stroke-like symptoms and
additional evaluation and testing revealed that she did, in fact, experience a stroke. Ms. Ghere
opined that it seemed logical that the restroom fall and the subsequent stroke were related, with
the fall and head injury possibly causing the stroke.
In a medical note dated September 13, 2018, Dr. Cassandra L. Stacy, a Board-certified oral
and maxillofacial surgeon, saw appellant for complaints of a “bad tooth” that she believed needed
to be extracted. She diagnosed fracture, nonrestorable of tooth number 15. In an operative report
of even date, Dr. Stacy performed surgical removal of tooth number 15.

2

Appellant sought treatment with Dr. Eric J. Zeiszler, a chiropractor, from November 6
through 21, 2018. Dr. Zeiszler noted that appellant sustained a work-related head injury after a
fall and had experienced low back pain following the incident. He diagnosed segmental and
somatic dysfunction of sacral and lumbar region, lumbago with sciatica, and contracture of muscle.
In a November 12, 2018 report, Ryan Sword, a physical therapist certified in strength and
conditioning, diagnosed segmental and somatic dysfunction of sacral and lumbar region, lumbago
with sciatica, and contracture of muscle.
In a December 21, 2018 development letter, OWCP informed appellant of the type of
factual and medical evidence necessary to establish her claim and provided a questionnaire for her
completion. It also requested that she submit a narrative medical report from her treating
physician, which contained a detailed description of findings and diagnoses, explaining how her
work activities caused, contributed to, or aggravated her medical conditions. OWCP afforded
appellant 30 days to submit the necessary evidence. It did not receive any additional evidence.
By decision dated January 25, 2019, OWCP accepted that the June 6, 2018 employment
incident occurred as alleged, but denied appellant’s claim finding that she had not established that
her diagnosed medical conditions were causally related to the accepted employment incident.
Appellant subsequently submitted a January 23, 2019 report from Ms. Ghere regarding a
hospital follow-up for hypertension and anxiety. Ms. Ghere noted that appellant had been seen in
the emergency room on January 17, 2019 for a possible cerebrovascular accident.
On March 5, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an August 22, 2018 report, Dr. Evan M. Williams, a Board certified psychiatrist and
neurologist, diagnosed stroke after recurrent symptoms of left-sided numbness involving the face
and hand.
Appellant, in a January 1, 2019 response to OWCP’s development questionnaire set forth
the factual circumstances of her employment incident when she fell.
A January 17, 2019 hospital record noted a normal MRI scan of the brain and a grossly
normal magnetic resonance angiogram of the head and neck. In an office visit note of even date,
Ms. Ghere diagnosed altered mental status.
In a February 9, 2019 report, Dr. Chad M. Nelson, a general dentist, noted that appellant
had lost teeth number 14 and 15 since her stroke and fall in late spring 2018. She had been
diagnosed with a root fracture on tooth number 15 and it was noted that tooth number 14 likely
had a root fracture also. Dr. Nelson indicated that it was hard to determine exact causality of the
root fractures as both teeth had a history of root canals with crowns. He further noted, however,
that there had been no noted pathology prior to the fall and that root fractures can be consistent
with trauma. Dr. Nelson opined that the sudden loss of teeth number 14 and 15 was related to the
trauma appellant experienced with her fall.

3

In a statement dated February 19, 2019, appellant provided a timeline of events and
medical treatment beginning June 6, 2018, when she donated blood at the employing
establishment, to January 22, 2019, when she had tooth number 14 extracted and a bone graft
completed for a future implant. She asserted that the medical evidence of record established that
her diagnosed medical conditions were causally related to the accepted employment incident.
A telephonic hearing was held before an OWCP hearing representative on June 18, 2019.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
In response, appellant submitted a June 18, 2019 report from Dr. Anderson who indicated
that he first saw appellant on June 11, 2018 for a left knee injury after a fainting episode five days
prior and when she woke her left knee had new significant pain. He indicated that the pain did not
exist before the fall and he concluded that the fall was the direct cause of her knee injury.
On June 18, 2019 Dr. Zeiszler indicated that he had been treating appellant since
November 6, 2018 for injuries causally related to the June 6, 2018 incident.
Appellant further submitted a June 18, 2019 report from Dr. John R. Bailey, a Ph.D. in
psychology, who diagnosed adjustment disorder with mixed emotional features and
cerebrovascular accident (CVA) due to an injury at work that had caused ongoing physical and
emotional impairment. Dr. Bailey provided a history of injury that appellant had donated blood
and then fainted in the bathroom leading to a head and knee injury, damage to her teeth, a stroke
the following week, and difficulty regulating her emotions.
OWCP also received a June 21, 2019 report from Dr. Nelson who reiterated that appellant
had lost teeth number 14 and 15 since her fall on June 6, 2018.
By decision dated July 25, 2019, OWCP’s hearing representative affirmed the January 25,
2019 decision, finding that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed conditions and the accepted June 6, 2018 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.5 The second component is whether the employment incident caused a personal injury.6
Rationalized medical opinion evidence is required to establish causal relationship. 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 rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted June 6, 2018 employment incident.
In his reports, Dr. Anderson diagnosed left knee MCL sprain, MPFL sprain, medial
retinaculum sprain, and medial and patellofemoral chondromalacia due to a left knee injury after
a fainting episode at work on June 6, 2018. He indicated in his June 18, 2019 report that
appellant’s left knee pain did not exist before the accepted employment incident and concluded
that the fall was the direct cause of appellant’s knee injury. Similarly, in his February 9, 2019
report, Dr. Nelson noted that appellant had no noted pathology in her fractured teeth prior to the
accepted employment incident and concluded, therefore, that the sudden loss of teeth number 14
and 15 was related to the trauma appellant experienced with her fall. The Board has held that an
opinion that a condition is causally related to an employment injury simply because the employee
was asymptomatic before the injury is insufficient, without supporting rationale, to support a
causal relationship.8 Therefore, the June 18, 2019 report of Dr. Anderson and the February 9, 2019
report of Dr. Nelson are insufficient to establish appellant’s claim.
The remaining reports of Drs. Anderson and Nelson, as well as the August 22, 2018 report
of Dr. Williams and the September 13, 2018 reports of Dr. Stacy fail to address causation.
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

6

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

7

J.L., Docket No. 18-1804 (issued April 12, 2019).

8
See A.R., 19-0465 (issued August 10, 2020). M.M., Docket No. 18-1522 (issued April 22, 2019); K.P., Docket
No. 17-1145 (issued November 15, 2017).

5

Dr. Williams diagnosed a stroke after appellant presented with recurrent symptoms of left-sided
numbness involving the face and hand. Dr. Stacy reiterated a diagnosis of nonrestorable fracture
of tooth number 15 and noted performing surgical removal of the fractured tooth. However, these
reports do not address the cause of appellant’s diagnosed medical conditions. 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 on the issue of causal relationship.9 Therefore, this evidence is
also insufficient to meet appellant’s burden of proof.
Appellant further submitted a June 18, 2019 report from Dr. Bailey who diagnosed
adjustment disorder with mixed emotional features and CVA due to an injury at work on
June 6, 2018. He explained that appellant had donated blood and then fainted in the bathroom
leading to a head and knee injury, damage to her teeth, a stroke the following week and difficulty
regulating her emotions. The Board has held that a medical opinion must provide an explanation
of how the specific employment incident physiologically caused or aggravated the diagnosed
conditions.10 While the opinion supporting causal relationship does not have to reduce the cause
or etiology of a disease or a condition to an absolute certainty, the opinion must be one of
reasonable medical certainty and not speculative or equivocal in character.11 As the opinion of
Dr. Bailey regarding causal relationship is conclusory and unexplained, it is insufficient to meet
appellant’s burden of proof to establish her claim.12
Appellant submitted evidence from Ms. Ghere and Ms.Fernholz, physician assistants, and
Ryan Sword, 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.13 Consequently, their medical findings and/or opinions are of no probative value
and will not suffice for purposes of establishing entitlement to compensation benefits.
Appellant also submitted medical reports dated November 6, 2018 through June 18, 2019
from Dr. Zeiszler, a chiropractor. Under FECA, chiropractors are only considered physicians, and
their reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.14 Because Dr. Zeiszler did not treat spinal subluxations that were
demonstrated by x-ray to exist, his reports are not considered to be medical evidence and are of no
9

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

10

A.H., Docket No. 19-0270 (issued June 25, 2019); M.W., Docket No. 18-1624 (issued April 3, 2019).

11

C.H., Docket No 19-0409 (issued August 5, 2019).

12

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

13

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. David P. Sawchuk, 57 ECAB
316, 320 n.11 (2006); see also S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (nurse practitioners are not
considered physicians under FECA). See also B.J., Docket No. 18-1276 (issued February 4, 2019); J.R., Docket No.
18-0801 (issued November 26, 2018).
14
5 U.S.C. § 8101(2). See A.M., Docket No. 16-1875 (issued August 23, 2017); Jack B. Wood, 40 ECAB 95,
109 (1988).

6

probative value regarding the issue of causal relationship. These reports are therefore insufficient
to establish appellant’s claim.
Finally, appellant submitted diagnostic studies in the form of x-ray, MRI, and angiogram
reports. The Board has held, however, that diagnostic studies, standing alone, lack probative value
on the issue of causal relationship as they do not address whether the employment incident caused
a diagnosed medical condition.15 The Board finds, therefore, that this evidence is also insufficient
to establish appellant’s claim.
As the record lacks rationalized medial evidence establishing causal relationship between
appellant’s diagnosed conditions and the accepted June 6, 2018 employment incident, the Board
finds that she has not met her burden of proof.16
On appeal appellant argues that the medical evidence of record is sufficient to establish her
claim. As noted above, however, the evidence of record is insufficient to establish causal
relationship between appellant’s diagnosed conditions and the accepted June 6, 2018 employment
incident.
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 medical
condition causally related to the accepted June 6, 2018 employment incident.

15

M.L., Docket No. 18-0153 (issued January 22, 2020).

16

Y.K., Docket No. 18-1167 (issued April 2, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 9, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1070
Issued: March 18, 2022

Case Submitted on the Record

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

On July 8, 2021 appellant filed a timely appeal from an April 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-1070.
On December 9, 2020 appellant, then a 53-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed left cubital and carpal tunnel syndrome due
to factors of his federal employment, including sorting, casing, and delivering mail; lifting and
delivering packages; and unloading tubs, bags, and parcels. He indicated that he first became
aware of his condition on September 3, 2020, and that it was related to his federal employment on
November 30, 2020. OWCP assigned this claim File No. xxxxxx436.
Appellant had previously filed a Form CA-2 on November 5, 2020 alleging that he had
sustained carpal tunnel syndrome due to factors of his federal employment including sorting,
casing and delivering mail, as well as lifting packages. He related that he first became aware of
his condition and its relationship to his federal employment on September 3, 2020. OWCP
assigned this claim File No. xxxxxx310.
In a development letter dated December 15, 2020 in the instant claim, OWCP File No.
xxxxxx436, OWCP informed appellant of the deficiencies of his claim. It advised him regarding

the type of medical evidence necessary to establish his claim and provided 30 days for him to
submit the requested evidence.
In response, appellant submitted a medical report dated September 10, 2020 from Dr. Ryan
Beekman, a Board-certified orthopedic and hand surgeon. Dr. Beekman diagnosed tendinosis and
tenosynovitis involving the extensor carpi ulnaris without tendon tear, minimal tenosynovitis of
the extensor carpi radialis longus and brevis tendons. In reports dated September 24 and
November 5, 2020, he diagnosed bilateral carpal tunnel syndrome and also cubital tunnel
syndrome.
In a report dated November 30, 2020, Amy Herrick, a nurse practitioner, related that
appellant was seen for a follow-up appointment for his bilateral carpal tunnel syndrome and that
he was scheduled for a right carpal tunnel release.
In a letter dated January 8, 2021, Dr. Beekman related that appellant underwent bilateral
right and left carpal tunnel release on January 5, 2021. He noted that appellant had indicated that
his hand symptoms of numbness and tingling were significantly exacerbated by his work activities
including lifting heavy objects and repetitive heavy gripping. Dr. Beekman concluded that it was
reasonable to believe that appellant’s bilateral carpal tunnel syndrome and left cubital tunnel
syndrome were causally related to his employment.
By decision dated February 4, 2021, OWCP denied appellant’s claim as causal relationship
was not established between the diagnosed medical conditions and the accepted employment
factors. It concluded, therefore, that the requirements had not been met to establish an injury or
medical condition causally related to the accepted employment factors.
In a letter dated March 2, 2021, Dr. Beekman related that appellant had reported that his
symptoms were significantly exacerbated by his work activities of lifting heavy objects and
gripping. He also stated that medical literature supported that repetitive heavy gripping was a
known cause of carpal tunnel and that he believed that appellant’s work duties caused his bilateral
carpal and left cubital tunnel syndrome.
On March 11, 2021 appellant requested reconsideration of OWCP’s February 4, 2021
decision.
By decision dated April 28, 2021, OWCP denied modification of its February 4, 2021
decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depend on frequent cross-referencing between the files. 1 For
example, if a new injury case is reported for an employee who previously filed an injury claim for

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

a similar condition or the same part of the body, doubling is required.2 Herein, appellant filed a
claim for carpal tunnel syndrome, assigned OWCP File No. xxxxxx310 on November 5, 2020, and
subsequently filed an occupational disease claim on December 9, 2020 for cubital and carpal
tunnel syndrome, assigned OWCP File No. xxxxxx436. The evidence pertaining to OWCP File
No. xxxxxx310, however, is not part of the case record presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx310. Following this and such further
development as OWCP deems necessary, it shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the April 28, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2

Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,
Docket No. 17-0432 (issued August 17, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Richmond, CA, Employer
__________________________________________

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

Docket No. 17-1467
Issued: July 26, 2018

Case Submitted on the Record

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

JURISDICTION
On June 21, 2017 appellant, through counsel, filed a timely appeal from a May 4, 2017
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 the claim.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 record provided to the Board includes evidence received after OWCP issued its May 4, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of total
disability during the period November 21, 2015 through March 8, 2016 causally related to her
accepted December 6, 2006 employment injury.
FACTUAL HISTORY
On December 6, 2006 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging left thumb and wrist injury caused by pulling mail down and keying
sacks of mail weighing 70 pounds.
By letter dated December 21, 2006, OWCP advised that the claim would be developed as
an occupational disease claim as the work factors cited were repetitive in nature. It accepted the
claim for left wrist/hand tendinitis/radial styloid tenosynovitis. Appellant worked in a full-time
modified work capacity from December 1, 2006 until November 16, 2009, when the employing
establishment could no longer accommodate her restrictions. OWCP paid her wage-loss
compensation benefits on the periodic rolls, effective December 20, 2009. Appellant returned to
modified work for eight hours per day on February 9, 2015.
In a March 19, 2015 report, Dr. Michael Hebrard, a Board-certified physical medicine and
rehabilitation specialist, diagnosed de Quervain’s tenosynovitis. He advised that appellant was to
remain on modified duty with restrictions.
In an April 30, 2015 report, Dr. Hebrard indicated that appellant’s functional deficits in her
left wrist were consistent with the ongoing underlying degenerative changes in the first
carpometacarpal (CMC) joint. He continued to restrict her to sedentary work with limitations
related to the left upper extremity.
On May 15, 2015 Dr. Hebrard saw appellant for an “urgent unscheduled appointment.” He
opined that the significant flare up of her left shoulder, elbow, forearm, wrist, and finger swelling
and inflammation was an ongoing functional impairment due to her underlying preexisting
condition. There was no intervening cause; rather, it was a natural progression of the disease
pathology. Dr. Hebrard noted that results seen on the February 2015 left wrist magnetic resonance
imaging (MRI) scan were consistent with the acute exacerbation of appellant’s condition. He
noted that she was disabled for a few days as she had residual functional deficits with restricted
range of motion of the left shoulder, left elbow, and left wrist. Dr. Hebrard released appellant to
return to work on May 18, 2015 with her previous restrictions.
In an October 30, 2015 work restriction note, Dr. Hebrard assigned permanent work
restrictions for use of the left arm.
In a November 20, 2015 progress note, Dr. Hebrard indicated that on November 13, 2015,
appellant was sitting at her desk at work and suffered direct trauma to her left elbow and wrist. He
diagnosed ulnar neuritis of the left elbow, aggravation of the left wrist de Quervain’s tenosynovitis,
and carpal tunnel syndrome. Dr. Hebrard noted that appellant suffered blunt trauma to the elbow
which caused subsequent compression against the ulnar nerve. In an attempt to brace herself,

2

appellant had also sprained her wrist with the extension action of the left wrist, which was
previously injured. She had ongoing issues with nerve root entrapment of the elbow and the left
wrist and the November 13, 2015 trauma caused a significant amount of swelling of the left wrist.
Dr. Hebrard ordered an x-ray and MRI scan of the left elbow. He opined that appellant would
remain temporarily totally disabled until she underwent the MRI scan due to the increased pain
and swelling. In a November 20, 2015 work restriction note, Dr. Hebrard indicated that she was
temporarily totally disabled until the next appointment due to right wrist and elbow exacerbated
flare up. In a November 20, 2015 work excuse note, he noted that appellant was temporarily totally
disabled from November 20, 2015 to January 6, 2016.
In a January 6, 2016 report, Dr. Hebrard diagnosed radial styloid tenosynovitis
(de Quervain). He indicated that appellant had a significant chronic disabling condition of the
abductor pollicis longus and extensor pollicis brevis tendon of the left wrist versus the radial
styloid tenosynovitis which was a chronic condition. Dr. Hebrard opined that her condition was
causally related to the factors of her occupational injury which were still present and disabling.
In a February 17, 2016 report, Dr. Hebrard diagnosed radial styloid tenosynovitis
(de Quervain). He opined that appellant’s condition was still present and medically disabling.
Dr. Hebrard indicated that there had been a material change in her grip strength, increased
swelling, and stiffness in the left wrist. He also indicated that appellant was developing complex
regional pain syndrome (CRPS).
In a February 25, 2016 report, Dr. Mathias A. Masem, a Board-certified orthopedic
surgeon, noted that appellant returned for a follow up of her right wrist tendinitis after not being
seen since May 2012.4 He noted that, in November 2015, she sustained a direct trauma to her left
elbow and wrist when she was hit by a mail cart. Dr. Masem diagnosed primary osteoarthritis of
the first CMC joint of the left hand. Dr. Masem noted that, as appellant’s symptoms appeared to
be remarkably disproportionate to her physical findings, this suggested some type of pain
syndrome or otherwise psychological factors affecting the physical illness.
On March 14, 2016 appellant filed a recurrence claim (Form CA-2a) alleging a recurrence
of disability on November 13, 2015. She stated that on November 13, 2015, her left hand and
elbow were struck by a coworker’s mail cart and that her left wrist had continued to swell and
throb constantly. Appellant stopped work November 21, 2015 and returned to work on
March 8, 2016.
On March 16, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period November 21, 2015 to March 16, 2016. The employing establishment indicated that
she had returned to work on March 8, 2016 and was working within her medical restrictions.5
By development letter dated April 13, 2016, OWCP noted that appellant returned to work
on February 9, 2015 in a modified capacity until stopping work on November 21, 2015. It advised

4

This appears to be a typographical error as it should refer to left wrist tendinitis.

5

OWCP continued to receive medical reports which pertained to appellant’s medical status after March 9, 2016.

3

her of the type of evidence needed to establish her recurrence of disability claim. Appellant was
afforded 30 days to submit the necessary evidence.
In a response received April 25, 2016, appellant alleged that she was primarily disabled
from her December 6, 2006 injury.6 She asserted that she was still disabled from her original work
injury when she was hit in her left elbow and hand by the mail cart on November 13, 2015.
Appellant indicated that she had filed a claim for the November 13, 2015 work injury under File
No. xxxxxx425.7
By decision dated July 13, 2016, OWCP denied appellant’s recurrence claim for the period
November 21, 2015 to March 8, 2016 as the evidence of record failed to establish that she was
disabled from work due to a material change/worsening of her accepted work-related conditions
without an intervening injury. It found that Dr. Hebrard repeatedly acknowledged that appellant’s
disability from work for the period November 21, 2015 to March 8, 2016 was due to the
November 13, 2015 work incident.
Appellant continued to submit Form CA-7 claims for compensation for intermittent time
lost from March 9, 2016 forward as she was only working six hours per day.8
On July 25, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In an August 8, 2016 report, Dr. Hebrard noted that appellant had ongoing residuals and
disability from her occupational injury and could only work six hours a day with restrictions. He
noted that she had an accepted December 6, 2006 work-related claim under File No. xxxxxx171,
for which she continued to have ongoing problems and weakness in the left wrist with grasping,
pinching, pushing, pulling, and lifting. Dr. Hebrard indicated that appellant was involved in a
subsequent injury on November 13, 2015 where there was a direct trauma to the left elbow and the
left wrist. Appellant had increased swelling, stiffness, and weakness as a result of the direct trauma
of November 13, 2015. Dr. Hebrard noted that this was a new injury and that it caused a material
change in her condition with increased weakness, stiffness, muscle spasms, and numbness in the
left upper extremity which precluded her from being able to perform her eight-hour a day modified
position. He opined that a material change occurred as a direct result of the trauma to the
preexisting left wrist condition and to the elbow, which created a new injury. Dr. Hebrard also
indicated that there was an aggravation of new condition of the left wrist, which ultimately was a
new injury. He explained that there was a material change and worsening of her condition, which
precluded appellant from grasping, pinching, pushing, pulling, reaching, and lifting, which was
required in the course of her employment and rescaled back her work level. As a result, appellant
continued to have ongoing functional weakness, stiffness, muscle spasms, weakness, swelling of
6

On May 27, 2016 appellant submitted CA-7 forms for intermittent time lost from March 9, 2016 forward as she
was only working six hours per day.
7

Under OWCP File No. xxxxxx425, OWCP accepted a November 13, 2015 traumatic injury for contusion of the
left shoulder, contusion of the left upper arm/elbow, and contusion of the left wrist.
8
In work restriction notes and progress notes of August 8, 2016, Dr. Hebrard indicated appellant’s work restrictions
on a six-hour day.

4

the left elbow, and left wrist and had not completely recovered. Dr. Hebrard concluded that she
had suffered a chronic irreversible permanent aggravation of that left wrist and a chronic disabling
condition of the left elbow as a result of the November 13, 2015 direct trauma. He submitted work
restriction notes indicating that appellant could only work six hours a day with restrictions.
Evidence pertaining to appellant’s November 13, 2015 claim, under File No. xxxxxx425,
was received. In a November 13, 2015 report, Dr. Arnold Traynis reported that she was seen for
pain of her left upper extremity after a cart was accidently pushed into her by another coworker
about an hour ago. Appellant was noted to have been seated and doing data entry. Dr. Traynis
noted that she had a history of injury to the left upper extremity. Following the injury, appellant
had swelling on the top of her wrist and she was unable to move her shoulder, elbow, or wrist due
to pain. Dr. Traynis provided an assessment of contusion of left shoulder, contusion of left upper
arm, and contusion of left wrist. He indicated that appellant had a flare up of prior injury from
cart being pushed into her. Appellant was instructed to continue modified work. A November 13,
2015 duty status report was also provided. Other evidence pertaining to File No. xxxxxx425
included a November 16, 2016 report from Vila Phoulavan, PA, a physician assistant, which
provided an assessment of left elbow contusion with forearm and a partial State of California report
of occupational injury of illness.
In a November 10, 2016 report, Dr. Brendan Morley, a Board-certified anesthesiologist
and interventional pain management specialist, noted that appellant had a cumulative trauma injury
in 2006 and was diagnosed with left sided de Quervain tenosynovitis. Appellant was off work
from 2010 through 2015 and returned to full duty in 2015. However, in November 2015, a
coworker fell across her left arm, which caused left elbow pain and a worsening of the left wrist
pain. Appellant was noted to be working six hours per day. Dr. Morley diagnosed lateral
epicondylitis and de Quervain tenosynovitis. He noted that CMC arthralgia needed to be ruled
out. From a pain management perspective, Dr. Morley indicated that he had nothing to offer.
However, he felt that cognitive behavioral therapy may be beneficial.
In a December 9, 2016 report, Dr. Hebrard responded to appellant’s recurrence claim. He
noted that it was reasonable that her condition worsened due to an intervening cause. Dr. Hebrard
also noted that appellant had continued to perform her work duties and that those duties contributed
to the worsening. He explained that the performance of her duties led to increased stress which
led to cumulative trauma to the tendons of the wrist. This process was consistent with a radial
styloid tenosynovitis. Dr. Hebrard indicated that filing a claim for an occupational injury may be
more appropriate than seeking a recurrence of disability.
By decision dated January 6, 2017, OWCP denied appellant’s claim for a recurrence of
disability for the period November 21, 2015 to March 8, 2016 as the evidence of record failed to
establish that she was disabled from work due to a material change/worsening of her accepted
work-related conditions without an intervening injury. It noted that she continued to submit CA-7
forms, even though a denial had been issued for recurrent disability from November 21, 2015
through March 8, 2016. OWCP indicated that it reviewed the claim and found that the medical
evidence was insufficient to support a recurrence of disability as it suggested that the
November 13, 2015 traumatic injury was a causative factor in appellant’s condition and resultant
disability.

5

On January 18, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
On January 26, 2017 the employing establishment offered appellant a modified position
for six hours a day. Appellant refused the modified job offer. She began submitting Form CA-7
claims for compensation for total disability commencing January 23, 2017.
A telephonic hearing was held on March 15, 2017. Appellant was advised that only the
recurrence claim for the period November 21, 2015 through March 8, 2016 would be addressed as
she had returned to work for six hours per day on March 9, 2016. She was also advised that partial
disability beginning March 9, 2016 was a separate issue from the recurrence claim.
By decision dated May 4, 2017, an OWCP hearing representative affirmed OWCP’s
January 6, 2017 and July 13, 2016 decisions. The hearing representative found that the medical
evidence of record was insufficient to support that appellant’s disability during the period
November 21, 2015 through March 8, 2016, was a result of an objective worsening of her
condition without intervening cause.9 The hearing representative noted that OWCP had not issued
a formal decision regarding appellant’s entitlement to wage-loss compensation for intermittent
time lost beginning March 9, 2016 or for total disability commencing January 30, 2017.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.10 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.11
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that, light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.12

9

Appellant was advised to file CA-7 forms commencing November 21, 2015 under File No. xxxxxx425.

10

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

11

Id.

12
Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).

6

An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is causally related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with sound medical
reasoning.13
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability for the
period November 21, 2015 through March 8, 2016 causally related to her accepted left hand/wrist
tendinitis 2006 employment injury, without intervening cause.
A recurrence of a disability does not include a condition which results from a new injury,
even if it involves the same part of the body previously injured or by renewed exposure to the
causative agent of a previously sustained injury.14
In a November 13, 2015 report, Dr. Traynis provided an assessment of contusion of left
shoulder, contusion of left upper arm, and contusion of left wrist after a cart pushed by a coworker
accidently struck appellant. He indicated that appellant had a flare up of her prior injury from the
cart incident and instructed her to continue modified work. In a November 16, 2016 report, Vila
Phoulavan, PA, a physician assistant, also noted the new injury of November 13, 2015 and
instructed appellant to continue with her same restrictions.15 These reports do not establish that
appellant sustained a spontaneous change in her medical condition, causing total disability as of
November 21, 2016.
Dr. Hebrard evaluated appellant on November 20, 2015. He noted that she had sustained
direct trauma to the left elbow and wrist on November 13, 2015 while at work. Dr. Hebrard noted
that appellant suffered blunt trauma to the elbow where she was hit which caused subsequent
compression against the ulnar nerve. Appellant had also sprained her wrist with the extension
action of the left wrist, which was previously injured. Dr. Hebrard diagnosed ulnar neuritis of the
left elbow, carpal tunnel syndrome, and an aggravation of left wrist de Quervain’s tenosynovitis.
He placed appellant off work due to pain and swelling. From the content of Dr. Hebrard’s
November 20, 2015 report, it appears that he was attributing appellant’s disability to the
November 13, 2015 new traumatic injury. This, by definition, is not a recurrence.16

13

S.S., 59 ECAB 315 (2008).

14

See P.C., Docket No. 11-112 (September 13, 2011).

15
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
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); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law).
16

Supra note 14.

7

Dr. Hebrard continued to remove appellant from work in his January 6 and February 17,
2016 reports. In his February 17, 2016 report, he indicated that there had been a material change
in her grip strength, increased swelling and stiffness in the left wrist, and that she was developing
CRPS. However, Dr. Hebrard did not provide any opinion on the cause of appellant’s current
condition. The Board has held that 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.17
A probative medical opinion from Dr. Hebrard is particularly warranted in this case since appellant
had an intervening injury to the left elbow and wrist. He failed to provide any medical explanation,
based on medical rationale, as to how her accepted condition had materially changed or how her
disability arose without intervening injury.18
In his August 8, 2016 report, Dr. Hebrard opined that appellant’s ongoing residuals and
disability resulted from the November 13, 2015 new traumatic injury. He indicated that the
November 13, 2015 traumatic injury had caused a material change in her condition with increased
weakness, stiffness, muscle spasms, and numbness in the left upper extremity which precluded her
from being able to perform her eight-hour a day modified position. Dr. Hebrard opined that a
material change happened as a direct result of the trauma to the preexisting left wrist condition and
to the elbow, which created a new injury. He indicated that there was an aggravation of new
condition of the left wrist, which ultimately was a new injury. Dr. Hebrard explained that there
was a material change and worsening of appellant’s accepted condition which precluded appellant
from grasping, pinching, pushing, pulling, reaching, and lifting, which was required in the course
of her employment and rescaled back her work level. He concluded that she had suffered a chronic
irreversible permanent aggravation of that left wrist and a chronic disabling condition of the left
elbow as a result of the November 13, 2015 direct trauma and that appellant could only work six
hours a day with restrictions. Dr. Hebrard, therefore, again supported a finding that appellant’s
condition after November 13, 2015 was not a spontaneous worsening of appellant’s accepted 2006
injury, but was rather due to an intervening new event. As such he did not support appellant’s
recurrence claim.
In his February 25, 2016 report, Dr. Masem diagnosed primary osteoarthritis of the first
CMC joint of the left hand. He noted the November 2015 traumatic injury. Dr. Masem also
indicated that appellant’s pain symptoms seemed out of proportion to her physical examination
findings. However, he did not offer an opinion regarding disability commencing November 21,
2015 or why she was unable to work in any capacity due to her accepted condition as of that date.19
The Board has held that 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.20
On appeal, counsel argues that the decision is contrary to fact and law. In assessing medical
evidence, the weight of a physician’s opinion is determined by the opportunity for and
17
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
18

See S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

19

See Leslie C. Moore, 52 ECAB 132 (2000).

20

Supra note 17.

8

thoroughness of the examination, the accuracy and completeness of the physician’s knowledge of
the facts and medical history, the care of analysis manifested, and the medical rationale used to
explain the conclusions reached.21 For the reasons given, none of the medical reports submitted
in this case were of sufficient rationale to establish a recurrence of disability for the period
November 21, 2015 through March 8, 2016 causally related to the accepted left hand/wrist
tendinitis condition without intervening cause from the employment-related injury on
November 13, 2015.
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 established a recurrence of total disability for the
period November 21, 2015 through March 8, 2016 causally related to her accepted 2006
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 26, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
21

L.G., Docket No. 09-1692 (issued August 11, 2010).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
North Cascades National Park, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1865
Issued: January 23, 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 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 31, 2007 nonmerit decision denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over this nonmerit decision. The last merit decision of record was the Office’s October 25, 2005
decision. Because more than one year has elapsed between the last merit decision and the filing
of this appeal, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.

FACTUAL HISTORY
On July 15, 2005 appellant, then a 23-year-old volunteer intern, filed an occupational
disease claim alleging that she sustained a bilateral knee condition in the performance of duty.
In a September 23, 2005 letter, the Office requested additional information including
additional factual information and a comprehensive medical report. Appellant responded in an
October 24, 2005 letter describing the type of work performed that she believed contributed to
her knee condition. No medical evidence was submitted.
In an October 27, 2005 decision, the Office denied appellant’s claim, finding that there
was evidence that the claimed work events occurred but no medical evidence of a diagnosed
condition in connection with her employment.
Medical documentation was subsequently received by the Office. In an August 30, 2005
report, Dr. Marshall Anderson noted that appellant complained of bilateral knee pain while
hiking and climbing trails during her work as an intern. He diagnosed patellofemoral syndrome
in both knees. In an August 31, 2005 evaluation report, a physical therapist noted that appellant
reported the onset of right knee pain one to two months before with an increase in backpacking
activity while working as an intern for the National Parks System. In a September 2, 2005
attending physician’s report, Dr. Anderson checked the “yes” box indicating that he believed that
appellant’s condition was caused or aggravated by an employment activity and stated that it was
due to “repetitive use of knees or prolonged hiking and climbing.” In a September 21, 2005
report, a physical therapist stated that appellant was performing light to regular-duty work with
no hiking. On January 25, 2007 the Office received two additional occupational disease claims,
dated July 29 and August 30, 2005, for appellant’s knee condition.
On May 18, 2007 appellant requested reconsideration. She acknowledged that her
request was not within one year and stated that she did not know that she needed to send in the
reconsideration form in addition to the medical information.
On May 31, 2007 the Office denied appellant’s request for reconsideration on the
grounds that the request was untimely and did not present clear evidence of error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedures state
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

Veletta C. Coleman, 48 ECAB 367 (1997).

2

that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear
evidence of error on the part of the Office.4 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.7 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.9 In this case,
appellant’s May 18, 2007 letter requesting reconsideration was submitted more than one year
following the last merit decision of record, October 27, 2005. Therefore, it was untimely.
Consequently, appellant must demonstrate clear evidence of error by the Office in denying her
occupational disease claim.10

4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: The Office will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of it in its
most recent decision. The application must establish, on its face, that such decision was erroneous. 20 C.F.R.
§ 10.607(b).
5

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

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

Veletta C. Coleman, supra note 3.

10

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

3

Appellant has not established clear evidence of error. Prior to the October 25, 2005
decision she had not submitted any medical evidence to support her claim. After the decision,
the Office received medical information from Dr. Anderson who diagnosed appellant with
patellofemoral strain and indicated that it was related to her employment by checking a box
adding that it was due to “repetitive use of the knee or prolonged hiking and climbing.” There is
no rationalized medical evidence that appellant’s condition is related to her employment
sufficient to establish clear evidence that the Office’s decision was in error. Dr. Anderson noted
appellant’s repetitive use of the knees for prolonged hiking and climbing and checked a box
indicating that appellant’s employment activities were the cause of her condition. A physician’s
opinion supporting causal relationship consisting only of checking “yes” to a form question is
insufficient to establish a causal relationship.11 Medical evidence generally supporting a claim is
insufficient to establish clear evidence of error in the denial of that claim. Appellant has not
established with clear evidence that the Office erred in finding no causal relation between her
knee condition and her employment.
Under the clear evidence of error standard it is not enough that evidence is merely
supportive of the claim or can be construed to provide a contrary conclusion. It must be of
sufficient probative valued to shift the weight of the evidence in favor of appellant and raise a
substantial question as to the correctness of the merits of the Office’s decision.12 This is not the
case here. The evidence submitted does not prima facie establish that appellant sustained an
occupational disease in performance of duty.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not establish clear evidence of error.

11

Sedi L. Graham, 57 ECAB ___ (Docket No. 06-135, issued March 15, 2006).

12

See Veletta C. Coleman, supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 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

5