United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

3

thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

5

from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

6

these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. 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 accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her claim.
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.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); 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); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1920
Issued: February 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 4, 2014 appellant, through counsel, filed a timely appeal from a July 21,
2014 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 his burden of proof to establish a lumbar injury on
April 21, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 28, 2010 appellant, then a 40-year-old immigration and customs enforcement
special agent, filed a traumatic injury claim alleging that on April 21, 2010 he injured his lower
back doing sit-ups during an employing establishment fitness test program.
In an April 22, 2010 report, Dr. Frank Scafuri, a Board-certified internist, indicated that
appellant was doing some exercise with the employing establishment and then drove home from
Maryland. While driving back, appellant could not stand up straight or sit down comfortably.
An impression of lumbar pain strain was provided and pain medications provided. In a May 5,
2010 report, Dr. Scafuri provided an impression of lumbar pain with radiation down the leg and
opined that appellant should not work due to the pain medications. On May 5, 2010 he indicated
that appellant was disabled from May 5 to 18, 2010 and could return to work on May 19, 2010
with restrictions on pain medication for lumbar pain. In a May 6, 2010 report, Dr. Scafuri
indicated that appellant was seen on April 22, 2010 due to lumbar pain and was seen again on
May 5, 2010 with a tender right leg and decreased range of motion secondary to pain. He
requested authorization for a magnetic resonance imaging (MRI) scan of the lumbar spine to rule
out radiculopathy. In a May 18, 2010 report, Dr. Scafuri noted examination findings and
provided an impression of lumbar pain with radiation down the right leg and opined that
appellant should not work due to continued use of pain medication. In a May 10, 2013 report, he
diagnosed appellant with lower back pain and lumbar radiculopathy. Dr. Scafuri again requested
authorization for an MRI scan of the lumbar spine, pain management, and orthopedic evaluation.
Treatment notes and reports from Dr. Shailesh S. Pathare, a Board-certified physiatrist,
dated May 28 and June 11, 2010 were also provided. In the May 28, 2010 report, he indicated
that on April 21, 2010 appellant was asked to go to Maryland to perform a physical fitness
evaluation, which involved sit-ups as an exercise. While performing sit-ups, appellant felt
something pop in his lower back and since that time has had progressively worsening pain. The
pain worsened the next day as he continued to work and increased to the point where he had to
stop working. Appellant was given pain medication, but was told by his employer to stop
working. Dr. Pathare provided examination findings and provided an impression of right lumbar
radiculopathy and discogenic pain. He stated that it appeared appellant injured one of his lumbar
discs, L4-5 or L5-S1, when he was performing the sit-ups. Dr. Pathare opined that appellant was
unable to work from May 28 to June 20, 2010 while taking pain medication. In a June 11, 2010
report, he provided a diagnostic impression of right lumbar radiculopathy and discogenic pain.
Dr. Pathare noted that authorization for an MRI scan of the lumbar spine and x-rays were
pending. Copies of authorizations for diagnostic testing were provided. An undated page 1 of a
Form C-4, Doctor’s Initial Report, was also submitted.
On May 9, 2013 appellant filed a notice of recurrence on April 25, 2013 related to his
April 21, 2010 work injury. He claimed that sitting in a car conducting surveillance for 38 hours
out of a 46-hour period caused severe lower back and right leg pain.
In a May 20, 2013 letter, OWCP noted that when the initial claim was received, it
appeared to be a minor injury that resulted in minimal or no lost time from work and, since the
employing establishment did not controvert continuation of pay or challenge the case, a limited
amount of medical expenses were administratively approved and paid. However, the merits of

2

the claim had not been formally considered. Since appellant filed a claim of recurrence, OWCP
reopened the claim for consideration. It advised that the documentation submitted was
insufficient to establish the original claim as there was no physician’s opinion explaining how
the diagnosed conditions were caused or aggravated by the claimed work incident of doing situps. Appellant was requested to submit additional factual and medical information, including a
physician’s opinion supported by a medical explanation as to how the reported work incident
caused or aggravated the claimed injury. He was accorded 30 days to submit the requested
information.
In response, OWCP received additional medical reports and disability notes from
Dr. Scafuri.
In the April 26, 2012 report, Dr. Scafuri reported a history of back sprain about three
years previously at work with intermittent pain since then. He was recently doing security work
and had to be in a car for about 40 hours and developed pain. Pain began in April 24, 2012. An
impression of recurrent low back pain/muscle spasm was provided.
In the May 1, 2013 report, Dr. Scafuri indicated that appellant had a history of back
sprain about three years ago at work with intermittent pain since then. Appellant reported
developing recurring pain on April 24, 2013 and has not been to work since April 29, 2013. An
impression of recurrent low back pain/muscle spasm was provided. An MRI scan was requested
to rule out radiculopathy. In the May 10, 2013 report, Dr. Scafuri provided an impression of
recurrent low back pain/muscle spasm and on May 20, 2013 he diagnosed lower back pain and
radiculopathy. He opined that the injury was directly related to appellant sitting in a car for 38
hours over a 42-hour period. The May 20, 2013 report indicated an impression of recurrent low
back pain/muscle spasm and that the MRI scan was still pending. Dr. Scafuri indicated that
appellant was sitting in a car for over 40 hours and that may have aggravated his injury.
In the May 30, 2013 report, Dr. Scafuri provided details of appellant’s care from
April 22, 2010. He indicated that appellant was first seen on April 22, 2010 due to an injury
sustained on April 21, 2010 at work while doing the sit-up portion of an employing
establishment fitness test program in Cheltenham, Maryland. Dr. Scafuri stated that appellant
exhibited signs of severe lumbar spasm with inability to stand fully or sit comfortably. Pain
medication and home exercises were provided. Dr. Scafuri noted that on subsequent visits he
had requested approval for an MRI scan to rule out radiculopathy but notes that it was unknown
if an MRI scan had been approved there was no MRI scan report on file. He continued to note
lower back pain/chronic back pain due to his injury throughout 2011 and 2012. On April 26,
2013 Dr. Scafuri noted that appellant reaggravated his back during another work exercise on
April 25, 2013 when he was sitting in a car for 40 hours. No diagnosis was provided. After
appellant returned with worsening back pain, Dr. Scafuri requested on May 1, 2013 that
appellant undergo an MRI scan to evaluate the lumbar spine. Further evaluations in May 2013
showed appellant had little improvement and was told to stay home for work. There was no
indication regarding whether appellant underwent an MRI scan.
By decision dated July 16, 2013, OWCP accepted that appellant was doing sit-ups during
an employment fitness test but denied the claim as he had failed to establish that the diagnosed

3

conditions of lumbar strain and/or radiculopathy were causally related to the accepted
employment factors.
On January 23, 2014 OWCP received appellant’s request for reconsideration. Medical
evidence submitted in support of the request included additional reports from Dr. Scafuri.
In a September 23, 2013 report, Dr. Scafuri noted that on April 22, 2010 appellant came
under his care for an April 21, 2010 work injury which occurred while appellant was performing
the sit-up portion of a fitness program. He summarized appellant’s office visits, noting that
approval from appellant’s workers’ compensation insurance was still pending for an MRI scan of
the lower back to rule out radiculopathy. Approximately one year later, on April 26, 2013,
appellant came to the office after reaggravating his back on April 25, 2013 due to sitting in a car
for 40 hours. Dr. Scafuri again summarized appellant’s office visits and noted that on his last
office visit on July 23, 2013, appellant was finally able to have the MRI scan done and was
immediately ordered to seek neurosurgery and pain management. He opined that appellant
sustained L4-5 disc herniation causing right leg radiculopathy on April 25, 2013 which was a
reaggravation of an existing injury from April 21, 2010.
In a June 12, 2013 report, Dr. Scafuri provided an impression of recurrent low back
pain/muscle spasm and noted that an MRI scan was still pending. In a July 3, 2013 report, he
stated that appellant was seen because, while working on April 25, 2013, he threw out his back
and has been experiencing chronic back pain. An impression of recurrent low back pain/muscle
spasm was provided and noted that the MRI scan request was still pending. In a July 23, 2013
report, Dr. Scafuri stated that appellant had worsening lower back pain with radiculopathy and
was unable to work.
By decision dated July 21, 2014, OWCP denied modification of the July 16, 2013
decision. It reviewed the evidence appellant submitted in support of his reconsideration request
and found that the medical evidence continued to be insufficient to establish that doing sit-ups on
April 21, 2010 caused or aggravated his condition.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he actually experienced the employment incident at the time, place, and
in the manner alleged. Second, the employee must submit sufficient evidence, generally only in
the form of medical evidence, to establish that the employment incident caused a personal injury.
An employee may establish that the employment incident occurred as alleged but fail to show
that his or her condition relates to the employment incident.4
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.5 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.7 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.8
ANALYSIS
The record reflects that appellant first sought treatment for low back pain after
performing work-related sit-up exercises on April 21, 2010. He later claimed a recurrence on
April 25, 2013 related to his April 21, 2010 work injury after being in the car for about 40 hours
doing security work. OWCP advised appellant that it could not process the recurrence claim
until the original injury claim had been accepted.9 While it accepted that his alleged April 21,
2010 work incidents occurred as alleged, it denied his April 21, 2010 claim as the medical
evidence failed to establish a causal relationship between his reported work activity of doing situps and his back condition.
The Board finds that appellant has failed to meet his burden of proof. There is no
rationalized medical evidence which explains how appellant’s back condition is causally related
to the accepted work event of April 21, 2010. Medical reports and disability reports were
received from Dr. Scafuri pertaining to the April 21, 2010 incident. In his April 22, 2010 report,
Dr. Scafuri indicated that appellant was doing some exercises with the employing establishment
4

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

5

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

6

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

James Mack, 43 ECAB 321, 329 (1991).

8

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

9

Appellant may file a new claim for occupational disease if he believes he sustained additional injury on
April 25, 2013 due to new factors of his federal employment. See 20 C.F.R. § 10.5(q), occupational disease or
illness means a condition produced by the work environment over a period longer than a single workday or shift.

5

and, while driving back, he could not stand up straight or sit down comfortably. While he
diagnosed a lumbar strain, Dr. Scafuri provided no medical rationale as to how either doing
exercises or driving could have caused appellant’s condition. A physician must provide a
narrative description of the specific employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
condition.10
In many of his subsequent reports, Dr. Scafuri provided impressions of lumbar pain and
muscle spasm. The Board has held that pain11 and spasms12 are symptoms, but not diagnoses of
a medical condition, and do not constitute a basis for payment of compensation. Thus, these
reports are insufficient to meet appellant’s burden of proof.
Dr. Scafuri did provide an additional May 21, 2013 report in which he diagnosed lower
back pain with radiculopathy and opined that it was caused or aggravated by employment
activity. While he indicated that appellant had a history of lower back pain and had reinjured his
back during a work activity by sitting in a car for over 40 hours, he again did not provide medical
rationale to establish that appellant had sustained a back injury in April 2010. In his
September 24, 2013 report, Dr. Scafuri related that appellant sustained an L4-5 disc herniation
causing right leg radiculopathy on April 25, 2013, but again did not specifically address the
April 21, 2010 injury. For the above reasons, his reports are insufficient to meet appellant’s
burden of proof as to his alleged injury of April 21, 2010.
Appellant also submitted medical reports from Dr. Pathare. In his May 28, 2010 report,
Dr. Pathare noted that, while performing sit-ups on April 21, 2010, appellant felt something pop
in his lower back and since that time has had progressively worsening pain. He provided an
impression of right lumbar radiculopathy and discogenic pain. Dr. Pathare also stated that it
appeared appellant injured one of his lumbar discs, L4-5 or L5-S1, when he was performing the
sit-ups and that appellant was disabled. In a June 11, 2010 report, he provided a diagnostic
impression of right lumbar radiculopathy and discogenic pain. Dr. Pathare, however, does not
provide any rationale to explain how doing sit-ups physiologically caused the diagnosed right
lumbar radiculopathy. Furthermore, it is unclear how he diagnosed the lumbar radiculopathy as
he noted in his June 11, 2010 report that authorization for an MRI scan of the lumbar spine and
x-rays were pending. Thus, Dr. Pathare’s reports are insufficient to meet appellant’s burden of
proof to establish that he sustained a lumbar injury on April 21, 2010.
Counsel argued on appeal that appellant had established his claim or, in the alterative,
that OWCP failed to adequately develop the medical evidence in the record. Appellant claimed a
recurrence of the April 21, 2010 incident on April 25, 2013. The Board notes that as appellant

10

John W. Montoya, 54 ECAB 306 (2003); K.E., Docket No. 08-1461 (issued December 17, 2008).

11

See Robert Broome, 55 ECAB 339 (2004).

12

See J.C., Docket No. 14-1002 (issued December 19, 2014).

6

has not established that the April 21, 2010 incident caused a lumbar injury, a spontaneous return
of the accepted injury, causing disability, has also not been established.13
For the reasons listed above, the Board finds that the medical evidence did not include the
necessary factual and medical history and the needed medical reasoning to meet appellant’s
burden of proof or to require further development by OWCP.
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 did not meet his burden of proof to establish that he
sustained a lumbar injury on April 21, 2010.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
13

20 C.F.R. § 10.5 (x) defines a recurrence of disability as: “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.”

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, KANSAS CITY
NETWORK DISTRIBUTION CENTER,
Kansas City, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1902
Issued: April 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 16, 2019 appellant filed a timely appeal from an August 13, 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 an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On June 17, 2019 appellant, then a 48-year-old parcel post distributor (machine), filed an
occupational disease claim (Form CA-2) alleging that she sustained medical conditions in her legs,
1

5 U.S.C. § 8101 et seq.

feet, and back due to factors of her federal employment. She noted that she first became aware of
her conditions on August 15, 2018 and realized their relation to factors of her federal employment
on April 1, 2019. Appellant did not stop work.
In a development letter dated July 2, 2019, OWCP advised appellant that it required
additional factual and medical evidence to establish her claim. It attached a questionnaire,
requesting that she provide a detailed description of the employment factors she believed
contributed to her conditions, including a description of her required duties, relevant dates, and
how often she performed those duties. OWCP also requested that appellant submit a
comprehensive narrative medical report from her treating physician that included a diagnosis and
a reasoned explanation as to how specific work factors caused or contributed to the diagnosed
condition(s). In a separate development letter of even date, it requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of appellant ’s
statements, and a copy of appellant’s position description and physical requirements of her
position. OWCP afforded both parties 30 days to respond. No response was received from either
party.
By decision dated August 13, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish the alleged factors of her federal
employment as she described. As such, it concluded that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 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.4 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. 5
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.6 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
2

Supra note 1.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

20 C.F.R. § 10.5(q).

2

(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the identified employment
factors.7
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty, as alleged.
To establish a claim for compensation in an occupational disease claim, an employee must
submit a statement, which identifies the factors of employment believed to have caused his or her
condition.9 Appellant did not respond to OWCP’s July 2, 2019 development letter, requesting that
she provide detailed information concerning the employment factors she believed contributed to
her claimed conditions and its accompanying questionnaire.10
The only explanation that appellant provided pertaining to her occupational disease claim
was the limited statement she provided in her Form CA-2 wherein she indicated that the nature of
her injury consisted of nerve pain in her legs, feet, and back. However, appellant did not provide
a description of the specific employment-related factors, which she believed contributed to her
conditions or the circumstances and mechanisms of her injuries.11 Thus, the Board finds that this
evidence is insufficiently detailed to meet appellant’s burden of proof to establish the factual basis
of her claim.12
The Board finds that, because appellant has not established an injury in the performance of
duty, it is unnecessary to discuss whether the medical evidence of record is sufficient to establish
a medical condition causally related to factors of her federal employment. 13

7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

8

T.W., Docket No. 18-0788 (issued July 22, 2019); J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A.
Facey, 55 ECAB 217 (2004).
9

E.V., Docket No. 19-0447 (issued June 25, 2019); H.O., Docket No. 17-1176 (issued November 27, 2018).

10

A.H., Docket No. 19-0566 (issued August 22, 2019); D.C., Docket No. 18-0082 (issued July 12, 2018).

11

L.W., Docket No. 19-0196 (issued July 2, 2019); D.C., id.; D.M., Docket No. 18-0335 (issued June 18, 2018).

12

K.M., Docket No. 19-0367 (issued June 26, 2019).

13

J.S., Docket No. 19-1392 (issued February 13, 2020).

3

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2020
Washington, DC
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, McCLELLAN AIR FORCE BASE,
CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 15-0634
Issued: September 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2015 appellant filed a timely appeal from an August 12, 2014 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 to review the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of his accepted medical
condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 14, 2003 appellant, a 49-year-old dentist, filed an occupational disease claim
alleging that repetitive twisting and bending in the course of his employment had injured his low
back. He underwent a lumbar fusion that same month. In April 2005, OWCP accepted his claim
for permanent aggravation of spondylolisthesis at L2-3.
On January 17, 2006 appellant saw Dr. Rupina K. Mann, a Board-certified physiatrist at
the occupational medicine clinic. Dr. Mann found that appellant had reached maximum medical
improvement. Appellant’s gait was normal. He was able to bend forward and touch his toes,
though he complained of discomfort. Extension was limited. The left knee jerk was almost
absent. No atrophy of the leg muscles was seen. Appellant was able to walk on his heels and
toes. Future medical care was described as follows: “This continues to be the same with
medical management with pain medications, physical therapy, and as seen fit by the treating
physician.”
Dr. Mann completed a primary treating physician’s progress report on January 17, 2006
releasing appellant from care. It was noted however that appellant would be requiring future
medical care.
Appellant saw Dr. Glenn R. Thorp, his Board-certified internist, on October 26, 2006 for
a health maintenance visit. He was to return to the clinic in one year for another health
maintenance check and as needed.
Appellant returned to Dr. Thorp for a health checkup on September 11, 2007. He had no
complaints, with the exception of periodic back pain. “He states that it is better than prior to his
lumbar fusion however after twisting motions he does notice periodic leg pain. Currently, his
symptoms are quiet.” Appellant was noted to have no active medications on file as of
September 11, 2007. He was again advised to return for a yearly health check.
Appellant saw Dr. Mann on August 20, 2009 with some questions about his private
insurance. Dr. Mann noted that appellant was there to address the issues about the paperwork
“otherwise [appellant] is stable and states that he has learn[ed] to adapt to his disability.”
On January 21, 2011 appellant wrote to Dr. Thorp asking to initiate therapy: “I am
covered by the US Dept of Labor via a workman’s comp claim to have treatment paid to Kaiser
for tx of my back but have never utilized it. Occupational Medicine performed by post op PT in
2004 and I would like to initiate therapy again.” Dr. Thorp made a referral to the occupational
medicine department.
Appellant advised on February 17, 2011 that his symptoms were worsening. He began
receiving physical therapy for his low back to help decrease pain, improve range of motion, and
increase strength. It was noted that if appellant elected to discontinue physical therapy prior to
attaining the agreed upon goals and treatment plan of care, he would be considered discharged to
a self-management status. Further, he would be discharged from physical therapy services if he
was not seen for treatment within 30 days after the last visit.

2

The last physical therapy note, on October 21, 2011, indicated that appellant’s low back
pain was much better without right lower extremity radiation. He was watching posture and
body mechanics for the low back so as not to aggravate the symptoms. Appellant was to
continue with treatment in a month when he returned from a trip abroad.
Appellant saw Dr. Thorp in 2012 and 2013 for his routine health checkup. He had no
complaints.
On January 8, 2014 appellant first saw Dr. Peter W. Yip, who was Board-certified in
occupational medicine. Dr. Yip related appellant’s history and presenting symptoms. Factors
that increased pain included driving, prolonged sitting, twisting, and pulling weeds. Factors that
decreased pain included physical therapy and medication. Dr. Yip described his findings on
physical examination and diagnosed personal history of lumbar fusion and herniation of
intervertebral disc. He indicated that he would seek authorization for acupuncture treatment and
a water aerobics program. He noted that the stated mechanism was consistent with his clinical
examination findings, and no information was presented to indicate a cause other than the
alleged employment event or exposure.
Appellant explained that Dr. Yip was unable to obtain authorization for additional
medical treatment because OWCP had closed appellant’s case due to inactivity. He submitted
medical records in an attempt to show that he had been under continuous care for the accepted
injury since 2003. Appellant noted that his symptoms had increased, which prompted him to
contact the occupational medicine department in the summer of 2013 for other avenues of
treatment, “which is when I found out Dr. Mann had retired.” He then came under the care of
Dr. Yip, whom he first saw in January 2014.
OWCP acknowledged appellant’s request to reopen his case. As it appeared appellant
was claiming a need for additional medical care for the accepted condition of permanent
aggravation of spondylosis at L2-3,2 OWCP explained that after being released from care or after
not receiving care for a significant period of time, he had to provide evidence to support that his
need for treatment was due to a worsening of the accepted medical condition without intervening
cause. According to the medical records received by OWCP, he last received medical care for
his work-related condition on March 10, 2011. Appellant was found to be permanent and
stationary in 2006 and did not receive continuous medical treatment for the accepted condition.
There appeared to be a break in treatment from 2006 to 2009 and from 2001 to 2014, with the
exception of pain medication, for which there was a refill once a year. OWCP asked appellant to
provide, among other things, a physician’s medical explanation as to the relationship between his
current condition and need for treatment and the original work injury. It advised that the
physician must demonstrate that the accepted condition materially worsened, without intervening
cause, to the point that appellant required additional medical treatment.
Dr. Yip responded with a report dated July 1, 2014. He noted that appellant had chronic
low back pain since his lumbar surgery in 2003 with occasional pain radiating to his right
anterior thigh to knee level. Appellant had constant low back pain with waxing and waning
severity. He would use Vicodin twice a day and naproxen daily. Appellant awakened with
2

The accepted condition was permanent aggravation of spondylolisthesis at L2-3.

3

much low back pain with spasms in his right leg. Nonetheless, he continued to work as a dentist
and tried to remain active, exercising four to five times a week with a stair master for cardio
fitness, but no heavy lifting. Appellant felt that his low back pain had progressively worsened
over the last year without any new injuries. He had worsening pain and progressively worsening
weakness in his low back.
Current objective findings on physical examination were minimal. There was slight
tenderness at the left lumbosacral paraspinal with evidence of moderate spasm. There was pain
with extension to 20 degrees. There was no reflex at the left patellar tendon.
Dr. Yip opined that appellant’s low back pain with lumbar radiculopathy symptoms were
definitely related to his original injury. Although appellant’s low back pain and lumbar
radiculopathy symptoms improved after the lumbar fusion surgery, the symptoms never
resolved. He had ongoing and worsening chronic and constant low back pain and on-and-off
radiculopathy ever since the original injury. Appellant had received ongoing treatment from the
occupational medicine department by Dr. Mann until she retired in 2011. He had documented
occupational medicine and physical therapy visits through October 21, 2011. After Dr. Mann
retired, appellant had documented treatments from his primary care physician for chronic low
back pain management with monthly refills of prescriptions from December 2011 to the present.
In a decision dated August 12, 2014, OWCP denied the claimed recurrence of medical
condition. It found that the evidence was not sufficient to establish that appellant required
additional medical treatment due to a worsening of his accepted low back condition. OWCP
explained that he had not proved that he received continuous treatment for his work-related
condition. There were no medical reports from 2006 to 2009 or from 2012 to 2014 to prove that
appellant was being treated for his accepted condition during those periods. OWCP advised that
his claim remained closed for medical care.
On appeal, appellant argues that he has been continuously treated since his surgery in
2003 by occupational medicine and several other departments, and he requires treatment now
more than ever. He submits a newly dated copy of a statement he submitted to OWCP in 2014.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances, and supplies prescribed or recommended by a qualified
physician that the Secretary of Labor considers likely to cure, give relief, reduce the degree or
the period of any disability, or aid in lessening the amount of any monthly compensation.3
“Recurrence of medical condition” means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not

3

5 U.S.C. § 8103(a).

4

considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.4
An employee has the burden of establishing that he or she sustained a recurrence of a
medical condition that is causally related to his accepted employment injury. To meet this
burden, the employee must submit medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, supports that the condition is causally related
and supports his or her conclusion with sound medical rationale.5
ANALYSIS
It appears that appellant was released from care for the accepted condition on
January 17, 2006. He saw his treating physiatrist at the occupational medicine clinic, Dr. Mann.
Dr. Mann examined appellant and found that he had reached a permanent and stationary status.
She completed a primary treating physician’s progress note that day releasing him from care,
although it was noted that treatment would continue as seen fit by the treating physician.
Appellant had reached maximum medical improvement, or a point at which his recovery had
plateaued and continuing active medical attention was no longer expected to improve his status.
Further, treatment would continue on an as-needed basis. Appellant would no longer require
regular medical appointments.
The medical records submitted show very little activity over the next several years related
to the accepted condition. Appellant saw Dr. Thorp, his internist, for a health maintenance visit
in 2006 and 2007. On the latter visit, he had no complaints with the exception of periodic back
pain. Appellant’s symptoms were noted to be quiet and he was noted to have no active
medications on file as of September 11, 2007.
Appellant returned to see Dr. Mann in 2009 with some insurance questions. He was
noted to be stable and indicated that he had learned to adapt to his disability.
It was not until 2011 that appellant asked Dr. Thorp to initiate physical therapy once
again. He last received physical therapy on October 21, 2011, at which time his low back pain
was much better without right lower extremity radiation. According to the records in appellant’s
case file he would not receive physical therapy again until 2014.
In light of this evidence, it appears that appellant was released from active care in 2006
and that he received little if any medical attention for his accepted low back condition until 2011,
when he asked that physical therapy be initiated again. It also appears that he received little if
any medical attention for his accepted low back condition from 2012 to 2014. Appellant
contends on appeal that the treatment for his accepted medical condition has been continuous
since 2003, but this is not borne out by the record before OWCP. In this regard, he stated that
when his symptoms worsened in the summer of 2013, and he contacted the occupational
medicine clinic for other avenues of treatment, he found out that Dr. Mann had retired.
4

20 C.F.R. § 10.5(y).

5

O.H., Docket No. 15-0778 (issued June 25, 2015).

5

However, Dr. Mann retired in 2011, according to Dr. Yip, the specialist in occupational medicine
who assumed the role of primary treating physician on January 8, 2014.
The release from active treatment in 2006 and the periods of relative inactivity beginning
at that time and after 2011 justify OWCP’s request that appellant submit a reasoned medical
opinion establishing that the additional medical treatment he currently seeks is causally related to
an objective worsening of the accepted medical condition without intervening cause. In short,
appellant bears the burden of establishing a recurrence of medical condition.
In response to OWCP’s request for a reasoned medical opinion, Dr. Yip submitted his
July 1, 2014 report. Although he noted that appellant felt that his low back pain had been
progressively worsening over the last year, he did not explain whether this worsening was due to
the natural progression of the accepted aggravation of spondylolisthesis at L2-3, and if so, what
objective evidence documented the source of appellant’s complaints. On physical examination
appellant had slight tenderness at the left lumbosacral paraspinal with evidence of moderate
spasm, while the accepted medical condition was located somewhat higher at the L2-3 level.
OWCP must be able to determine whether this worsening was the result of the accepted medical
condition or whether it was a reflection of some other low back condition. It must also be able to
determine whether this worsening was brought about by some intervening injury or cause.
Dr. Yip reasoned that appellant’s current symptoms were related to the original injury
because his symptoms never resolved. The evidence must explain why appellant requires
renewed active medical treatment after being released from medical care in 2006 and after not
receiving active medical treatment since his physical therapy sessions in 2011. Dr. Yip did not
address these matters. He stated that appellant received ongoing treatment from Dr. Mann until
she retired in 2011, but this does not square with the medical record, which shows that she
released appellant from her care in 2006, after which he received little if any care for his
accepted medical condition until 2011. The Board has held that medical conclusions based on
inaccurate or incomplete histories are of little probative value.6
Refills of prescriptions for narcotic pain relievers since December 2011 do not establish
the reason appellant needed to renew active medical treatment for his accepted condition in 2013
or 2014. What exacerbated his low back pain, and whether that exacerbation involved the
accepted spondylolisthesis at L2-3, remain unknown. More rational is necessary for approving
the expenses associated with a resumption of active medical treatment. It will be up to Dr. Yip
to provide that basis.
The Board finds that the medical opinion evidence is insufficient to establish a recurrence
of medical condition. Accordingly, the Board will affirm OWCP’s August 12, 2014 decision.
CONCLUSION
The Board finds that appellant has not established a recurrence of medical condition.
6

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

6

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL VINSON VETERANS MEDICAL
CENTER, Dublin, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1815
Issued: December 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 18, 2014 appellant, through counsel, filed a timely appeal of a July 14, 2014
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 established neck and right shoulder injuries causally
related to factors of her federal employment.
FACTUAL HISTORY
On September 11, 2013 appellant, then a 54-year-old licensed practical nurse, filed an
occupational disease claim alleging shoulder and neck conditions. She first became aware of
1

5 U.S.C. § 8101 et seq.

these conditions on August 30, 2013. It was not until September 4, 2013 that appellant realized
these conditions were caused or aggravated by her employment.
By correspondence dated September 27, 2013, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. Appellant was advised as to the
medical and factual evidence required to support her claim and given 30 days to provide this
information.
In a September 27, 2013 report, Dr. David L. Tate, an examining Board-certified family
practitioner, indicated that appellant was seen for right shoulder and finger injuries. Diagnoses
included cervical radiculopathy, cervical degenerative disc disease, and cervical spinal stenosis.
Under history of illness, Dr. Tate related that appellant “has had ongoing persistent symptoms
with her neck and shoulder.” Appellant related that her right finger and arm problems began
with her new duties as a secretary answering telephones. A physical examination revealed that
appellant was morbidly obese and she had difficulty raising her right arm to shake his hand.
Dr. Tate related that he did not assess appellant’s right arm range of motion or strength “due to
perceived discomfort and complaints of pain.”
In an attending physician’s report (Form CA-20), Dr. Tate noted September 4, 2013 as
the date of injury and diagnosed cervical and spinal stenosis and cervical radiculopathy. Under
history of injury, he related that appellant developed new symptoms as a result of her new job
duties requiring her to answer telephones. Dr. Tate checked “yes” to the question of whether the
diagnosed condition(s) had been caused or aggravated by her employment.
In progress notes dated September 4, 2013, Dr. Shauna S. Kincheloe-Zaren, an
examining Board-certified family practioner, reported that appellant was seen that date for neck
pain running into her back and arm pain. She provided a history starting in 2012 when appellant
injured both shoulders when she was hit by a window and then hit a wall. In 2013 appellant was
hit on the left side of her neck by a patient who had dementia. Following this incident, she was
placed on light-duty work answering the telephones. Appellant alleged that she sustained neck
pain as a result of holding the telephone between her shoulder and neck due to answering the
telephones. She noted that the pain started the prior Friday, she reported the pain on Monday,
and that now she feels so bad she is unable to lift a stapler. Appellant described her pain as
beginning in her left neck, then radiating down the right side and radiating across into her
scapula, and down into the anterior arm and shoulder. A physical examination revealed limited
range of motion, inability to touch her chin to her chest, stiff neck muscles, tight right shoulder
muscles, inability to lift her arm, tenderness diffusely on palpation of the right shoulder, no thera
atrophy, and light grip. Appellant attributed the flare-up of her pain to having to answer the
telephones without a headset. Dr. Kincheloe-Zaren stated that appellant appeared “to be
uncomfortable and likely has a spasm in the muscles from the type of work she is doing on the
telephone.” In an addendum to the report, Dr. Kincheloe-Zaren related that a June magnetic
resonance imaging (MRI) scan showed previous cervical surgery which appellant had failed to
mention.
In progress notes dated September 6, 2013, Dr. Kincheloe-Zaren reported that appellant
was seen for a follow-up visit and that she “has significantly improved.” A physical examination
revealed that appellant was able to move her neck to the left and look down, had some reduced

2

neck range of motion to the right and left, was able to lift the left arm above her head, but could
only lift the right arm to shoulder level. Appellant had good left arm strength, reduced right arm
strength, reduced right hand grip, good left hand grip, and no erythema or specific neck,
shoulders, or hand tenderness. Dr. Kincheloe-Zaren noted that appellant sustained a work injury
in 2004 which required a cervical fusion, that she was injured again when a window hit her and
when she was kicked in the neck area by a patient. Appellant was injured again on September 4,
2013 when she was assigned to answer the telephone and she held the telephone between her
neck and shoulder. As a result of holding the telephone between the neck and shoulder she
sustained “an apparent muscle spasm.”
On October 24, 2013 the employing establishment controverted the claim and submitted
copies of two traumatic inujury claims previously filed by appellant. On June 20, 2013 appellant
had filed a traumatic injury claim alleging that on June 14, 2013 she injured her neck, right
shoulder, and upper back due to being hit in the neck by a patient with dementia.2 She had also
filed a traumatic injury claim alleging that on July 30, 2012 she sustained a neck injury as the
result of a window falling inward on her, striking her left shoulder, and causing her right
shoulder and head to hit the wall.3 The employing establishment noted that both claims had been
denied and that appellant alleged that her current neck condition was an aggravation of a prior
injury.
By decision dated October 30, 2013, OWCP denied appellant’s claim as the medical
evidence insufficient to establish a causal relationship between the diagnosed medical condition
and the identified employment factors.
On November 11, 2013 appellant’s counsel requested a telephonic hearing before an
OWCP hearing representative, which was held on May 8, 2014.
Subsequent to the hearing OWCP received additional factual evidence from the
employing establishment as set forth below. Appellant had been working in a light-duty job
since June 24, 2013 and was based on work restrictions set by her nurse practitioner. In an
August 14, 2013 memorandum, the employing establishment informed appellant that her limitedduty assignment of answering telephones was terminated. It noted that it could no longer
accommodate her work restrictions and she should return to her usual work duties. Appellant
was informed that she was expected to return to her regular duties effective August 19, 2013.
The employing establishment noted that her claim under OWCP File No. xxxxxx155 had been
denied by OWCP on August 8, 2013.
By decision dated July 14, 2014, an OWCP hearing representative affirmed the denial of
appellant’s claim.

2

OWCP assigned File No. xxxxxx010.

3

OWCP assigned File No. xxxxxx155.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
OWCP does not dispute that appellant answered telephones in her position. The question
that remains is whether her duties caused a diagnosed condition.
To discharge her burden of proof, appellant must submit a well-reasoned medical opinion
based on an accurate history explaining how the employment factors caused a diagnosed medical
4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

condition. In support of her claim, she submitted medical evidence from Drs. Tate and
Kincheloe-Zaren. For the reasons set forth the below, neither physician has provided a report
sufficient to support her claim.
In progress notes dated September 4 and 6, 2013, Dr. Kincheloe-Zaren reported that
appellant was seen for neck and arm pain. On September 4, 2013 she opined that appellant
“likely has a spasm in the muscles from the type of work she is doing on the telephone” and
diagnosed apparent muscle spasm. Dr. Kincheloe-Zaren’s reports do not contain medical
rationale explaining the nature of the relationship between appellant’s muscle spasm to her duties
of answering a telephone. She provided no explanation or rationale addressing the nature or
extent of the work performed or how the specific employment duties caused or contributed to
appellant’s claimed injury. Further, the Board has noted that muscle spasm is generally a
symptom rather than a firm diagnosis.11 Dr. Kincheloe-Zaren’s impression of muscle spasms in
her September 4 and 6, 2013 reports does not explain how the accepted activities aggravated or
contributed to any injury.
In an attending physician’s report (Form CA-20), Dr. Tate noted September 4, 2013 as
the date of injury and diagnosed cervical and spinal stenosis and cervical radiculopathy. He
checked “yes” to the question of whether the diagnosed condition(s) had been caused or
aggravated by her employment. The Board has held that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion is of diminished probative value and is insufficient to establish a claim.12 Thus, this
report is insufficient to meet appellant’s burden of proof.
The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.13 An award of compensation may not
be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment nor the belief that her condition was caused,
precipitated or aggravated by her employment is sufficient to establish causal relationship.14
As there is no probative, rationalized medical evidence addressing how her claimed neck
and right shoulder conditions were caused or aggravated by the identified employment duties,
she has not met her burden of proof. The Board will therefore affirm OWCP’s July 14, 2014
decision.
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.
11

J.S., Docket No. 07-881 (issued August 1, 2007); Deborah L. Beatty, 54 ECAB 340 (2003).

12

D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

13

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
14

See D.U., supra note 7; D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48
ECAB 115 (1996).

5

CONCLUSION
The Board finds that appellant has failed to establish neck and right shoulder conditions
due to the employment duties she identified.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2014 is affirmed.
Issued: December 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southfield, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-791
Issued: September 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 19, 2013 appellant, through counsel, filed a timely appeal of a January 31,
2013 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 is entitled to a schedule award following her June 20, 1997
refusal of suitable employment.
FACTUAL HISTORY
On March 10, 1996 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim alleging that on August 3, 1995 she first realized that her bilateral ankle tendinitis

1

5 U.S.C. § 8101 et seq.

was employment related. OWCP accepted the claim for bilateral ankle tendinitis. Appellant
stopped working on July 13, 1996.
By decision dated June 20, 1997, OWCP terminated wage-loss compensation effective
that day pursuant to section 8106(c) of FECA based on appellant’s refusal of an offer of suitable
work.
In a letter dated July 11, 1997, appellant requested a review of the written record by an
OWCP hearing representative.
By decision dated October 2, 1997, an OWCP hearing representative affirmed the
termination of appellant’s wage-loss compensation for refusing an offer of suitable work.2
On May 31, 2012 appellant filed a claim for a schedule award and submitted evidence in
support of her request.
In a May 31, 2012 report, Dr. Jessica Glazer Volsky, an examining osteopath, diagnosed
foot and ankle tenosynovitis and ankle ligamentous laxity/joint instability. Using the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), she found that appellant had a 20 percent left lower extremity
impairment and a 23 percent right lower extremity impairment. Dr. Volsky stated that appellant
had reached maximum medical improvement as of May 31, 2012.
By decision dated July 18, 2012, OWCP denied appellant’s claim for a schedule award.
It found that as appellant had refused suitable work pursuant to 5 U.S.C. § 8106(c) she was not
entitled to monetary compensation under a schedule award.
On July 20, 2012 appellant’s counsel requested a telephonic hearing before an OWCP
hearing representative, which was held on November 14, 2012.
By decision dated January 31, 2013, an OWCP hearing representative affirmed the
July 18, 2012 schedule award denial.
LEGAL PRECEDENT
Section 8106(c) of FECA3 provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for the employee is not
entitled to compensation. OWCP’s regulations further provide that, after it has provided an
employee with the appropriate notices, then OWCP will terminate the employee’s entitlement to

2

Appellant appealed to the Board. On December 19, 2002 the Board issued an order dismissing appellant’s
appeal as there were no decisions over which it had jurisdiction. Docket No. 02-967 (issued December 19, 2002).
3

5 U.S.C. § 8106(c).

2

further monetary compensation under 5 U.S.C. §§ 8105,4 81065 and 8107,6 as provided by 5
U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits as provided by
5 U.S.C. § 8103.7 The Board has affirmed these determinations beginning in Stephen R. Lubin.8
The Board has found that a refusal to accept suitable work constitutes a bar to receipt of a
schedule award for any impairment which may be related to the accepted employment injury.9
Maximum medical improvement means that the physical condition of the injured member
of the body has stabilized and will not improve further. The determination of whether maximum
medical improvement has been reached is based on probative medical evidence.10
ANALYSIS
In a decision dated June 20, 1997, OWCP terminated appellant’s compensation, effective
that same date, on the grounds that she neglected suitable work under section 8106. On May 31,
2012 appellant filed a claim for a schedule award.
In a decision dated July 18, 2012, OWCP found that appellant was not entitled to a
schedule award because OWCP had previously terminated her compensation benefits under the
provisions of 5 U.S.C. § 8106(c). As OWCP terminated appellant’s compensation benefits on
June 20, 1997, she is barred from receiving schedule award compensation for any period after
the termination decision was reached.11 The record, as reflected in Dr. Volsky’s May 31, 2012
report, indicates that appellant reached maximum medical improvement on May 31, 2012
following the June 20, 1997 termination date.12 The only medical evidence submitted to the
record establishes the date of maximum medical improvement well after the termination arising
in 1997. Therefore, OWCP properly denied her claim for a schedule award.

4

This section of FECA addresses claims for total disability

5

This section of FECA addresses claims for partial disability.

6

This section of FECA addresses claim for schedule awards.

7

20 C.F.R. § 10.517(b).

8

43 ECAB 564 (1992).

9

See T.U., Docket No. 08-1894 (issued June 15, 2009); B.K., 59 ECAB 228 (2007); Alfred R. Anderson, 54
ECAB 179 (2002); Stephen R. Lubin, supra note 8.
10

See J.C., 58 ECAB 258 (2007); Mark A. Holloway, 55 ECAB 321 (2004).

11

See supra note 9.

12

See Lizzie M. Greer, 49 ECAB 681 (1998) (where the date of maximum medical improvement occurred after
the termination of compensation based on the refusal to accept a suitable offer of employment, section 8106(c) bars
a claim for a schedule award).

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award
following her refusal of suitable work under section 8106(c) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 31, 2013 is affirmed.
Issued: September 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4