United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, WESTCHESTER
PROCESSING & DISTRIBUTION CENTER,
White Plains, NY, Employer
__________________________________________

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

Docket No. 13-1309
Issued: June 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 8, 2013 appellant filed a timely appeal of a February 26, 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 schedule award case.
ISSUE
The issue is whether appellant has greater than two percent right arm permanent
impairment and four percent left arm permanent impairment, for which he received schedule
awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 55-year-old mail processor, has an accepted occupational disease claim for
bilateral carpal tunnel syndrome. OWCP authorized surgery, which was performed on
December 3, 2010 for the right side and on April 22, 2011 for the left side. Appellant stopped
work on December 3, 2010 and returned to work on October 28, 2011. On April 26, 2012 he
filed a claim for a schedule award.
Dr. Shankar Krishnamurthy, a treating Board-certified orthopedic surgeon, indicated in
reports dated April 12 and June 4, 2012, that appellant had a 15 percent permanent impairment of
both the left and right upper extremities.
On August 14, 2012 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed
Dr. Krishnamurthy’s reports. He recommended referral of appellant to a second opinion
examination as Dr. Krishnamurthy failed to reference the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides) in rating
impairment.
In a December 11, 2012 report, Dr. Harvey L. Seigel, an office referral physician and
Board-certified orthopedic surgeon, detailed appellant’s medical history and findings on physical
examination. He provided range of motion findings, a positive left wrist Phalen’s test, bilaterally
negative elbow and wrist Tinel’s sign, negative bilateral transverse carpal ligament compression
test and complaints of tenderness over the left wrist volar aspect. Dr. Seigel referred to Table
15-232 for entrapment/compression neuropathy impairment to find a five percent left upper
extremity impairment and a two percent right upper extremity impairment using the sixth edition
of the A.M.A., (Guides).
Under diagnostic test findings, Dr. Seigel found a grade modifier of one bilaterally due to
conduction delays. He found a grade modifier of two under history for the left wrist due to
significant intermittent symptoms and a grade modifier of one for the right wrist due to mild
intermittent symptoms. Under physical findings, Dr. Seigel found a grade modifier of three for
left wrist atrophy and a grade modifier of one for normal findings on the right wrist. For the left
wrist, he rated the functional scale grade as mild for grade modifier two and for the right wrist,
he rated the grade as mild for grade modifier one. Dr. Seigel noted the left wrist grade modifiers
totaled seven, which when averaged equaled 2.33, which was rounded down to two.3 He found
the final left wrist rating category was grade two or a five percent left upper extremity
impairment. For the right wrist, the grade modifiers totaled three (1+1+1) which when averaged
placed appellant into the grade modifier of one for the right wrist. Dr. Seigel found five percent
left upper extremity permanent impairment which was the default rating for grade modifier two.
For the right wrist, the final rating was two percent impairment, which was the default rating for
grade modifier one.
2

A.M.A., Guides 449.

3

Dr. Seigel incorrectly added the grade modifiers (1+2+3 = 6) but the error is harmless. The proper addition is
six which renders two when averaged. Both the medical adviser and the second opinion placed the left wrist in the
grade modifier category of 2.

2

On January 15, 2013 Dr. Magliato reviewed Dr. Seigel’s report. He agreed with the two
percent right upper extremity impairment but found four percent impairment for the left upper
extremity impairment, rather than five percent. Dr. Magliato advised that, as the functional scale
grade modifier was one, it moved the default grade one value to the left making the total
permanent impairmant for the left wrist being four.
By decision dated February 26, 2013, OWCP granted appellant schedule awards for two
percent right upper extremity impairment and four percent left upper extremity impairment. The
period of the awards was from December 11, 2012 to April 21, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 The sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

Id. at 521.

11

Supra note 2.

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Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.13
ANALYSIS
OWCP accepted the claim for bilateral carpal tunnel syndrome and authorized carpal
tunnel surgery, which was performed on December 3, 2010 for the right side and April 22, 2011
on the left side. Appellant filed a claim for a schedule award on April 26, 2012.
Dr. Krishnamurthy, a treating Board-certified orthopedic surgeon, advised that appellant
had a 15 percent permanent impairment of both upper extremities. However, he failed to
identify how he had determined appellant’s impairment rating using the sixth edition of the
A.M.A., Guides. The Board has held that estimates of permanent impairment are irrelevant and
Thus,
of diminished probative value when not based on the A.M.A., Guides.14
Dr. Krishnamurthy’s findings are insufficient to establish the extent of permanent impairment to
appellant’s arms.
Both Dr. Seigel and OWCP’s medical adviser agreed as to the extent of appellant’s right
upper extremity impairment.
They found that Table 15-23 (Entrapment/Compression
Neuropathy Impairment) was appropriate to rate appellant’s bilateral carpal tunnel syndrome.15
Dr. Seigel and the medical adviser both placed the right wrist into a grade modifier of one for
diagnostic test findings due to some nerve conduction delay;16 grade modifier of two for history
due to mild intermittent symptoms17 and a grade modifier of one for normal physical findings.18
The Board notes that, when these grade modifier values were added (1+2+0), they properly
resulted in a total of three. Averaging this value of three by dividing three by three equaled one,
which properly placed the right wrist into grade modifier of one.19 The functional scale of mild,

12

Id. at 448-450.

13

Tommy R. Martin, 56 ECAB 273 (2005).

14

James R. Hill, Sr., 57 ECAB 583 (2006).

15

See note 8 at 449, Table 15-23.

16

Id.

17

Id.

18

Id.

19

See id. at 448-49

4

based on the QuickDASH score, appropriately rated appellant at the default values of two
percent impairment for the right upper extremity.
Using Table 15-23 to determine the left upper extremity impairment, Dr. Seigel and
OWCP’s medical adviser identified a grade modifier of one for diagnostic test findings for delay
in nerve conduction;20 for history, appellant was placed in grade modifier two due to significant
intermittent symptoms;21 and for physical findings, Dr. Seigel placed appellant’s left wrist in to a
grade modifier of three due to findings of atrophy.22 Under history, he found a grade modifier of
one for mild intermittent symptoms.23 The Board finds that OWCP properly found this to total
six (1+2+3). Dividing this value by three results in the average grade modifier of two.24 Next,
the medical adviser found that the modifier for functional scale moved the impairment rating
from five to four percent for the left upper extremity, based on the QuickDASH test results
finding mild impairment.
The Board finds that OWCP properly determined that appellant had two percent right
upper extremity impairment and four percent left upper extremity impairment under the sixth
edition of the A.M.A., Guides. There is no other medical evidence in conformance with the sixth
edition of the A.M.A., Guides that supports any greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than
two percent right upper extremity permanent impairment and four percent left upper extremity
permanent impairment, for which he received schedule awards.

20

Supra note 15.

21

Id.

22

Id.

23

Id. at 448-49.

24

See id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2013 is affirmed.
Issued: June 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-421
Issued: June 1, 2015

Case Submitted on the Record

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

JURISDICTION
On December 15, 2014 appellant, through counsel, filed a timely appeal from a June 25,
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.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
from work beginning July 26, 2013 as a result of his April 9, 2013 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 25, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On April 9, 2013 appellant, then a 45-year-old letter carrier, filed a traumatic injury claim
alleging that on that day he injured his right knee and leg when he fell down on uneven pavement
in the performance of duty. He stopped work and returned to full duty on April 18, 2013.
OWCP accepted appellant’s claim for right knee contusion and right medial meniscus tear.
In an April 9, 2013 magnetic resonance imaging (MRI) scan of the right knee, Dr. Vijay
Sankhla, a Board-certified diagnostic radiologist, reported bones of normal density and
development with no evidence of fracture or dislocation. He concluded that appellant had a
normal examination of the right knee.
In a July 10, 2013 report, Dr. Nicole Glynn, a Board-certified diagnostic radiologist,
stated that appellant had medial greater than lateral pain after a fall. She reported that an MRI
scan of the right knee showed a complex tear of the posterior horn of the medial meniscus and a
small amount of fluid posterior to the posterior cruciate ligament. Dr. Glynn noted no significant
joint effusion and intact lateral meniscus, anterior and posterior cruciate ligament, and medial
and lateral collateral ligament. She diagnosed complex tear of the posterior horn of the medial
meniscus and mild chondromalacia patella.
In a July 18, 2013 medical note, Dr. William Kennard, a Board-certified orthopedic
surgeon, related appellant’s complaints of continued pain and discomfort on the medial side of
the knee and difficulty with stairs and squatting. Upon examination, he observed patellar
tenderness and small effusion. No swelling or instability was present. Dr. Kennard stated that
appellant had loss of extension by five degrees. McMurray test was moderately positive.
Dr. Kennard reported that the MRI scan revealed a tear of the posterior and medial meniscus of
the right knee. He diagnosed tear of medial cartilage or meniscus of the knee. Dr. Kennard
recommended surgery and stated that appellant could work for another 10 days while the surgery
was approved.
On July 30 and August 13, 2013 appellant filed claims for disability compensation for the
period July 26 to August 9, 2013. He continued to submit additional CA-7 forms claiming
ongoing disability due to his April 9, 2013 employment injury.
In a letter dated August 9, 2013, OWCP advised appellant that it received his claim for
disability compensation beginning July 26, 2013. It informed him that before any compensation
could be paid it would need to make a decision on his claimed disability. OWCP requested that
appellant complete a recurrence of disability (CA-2a) claim form and also provide evidence to
explain why he stopped working on July 26, 2013.
On August 20, 2013 appellant filed a recurrence claim alleging that on July 26, 2013 he
sustained a recurrence of his April 9, 2013 injury. He stated that his right knee pain
progressively worsened as he continued to work after the April 9, 2013 injury. Appellant noted
that an MRI scan revealed a torn meniscus. He explained that he could not return to work
because he could not stand or walk for long periods of time due to the pain in his knee and
limping.

2

In a letter dated August 28, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his recurrence of disability claim. It requested that he provide
responses to the attached questions and a medical report which explained, based on medical
rationale, how appellant’s disability was due to his accepted employment injury.
In a decision dated October 4, 2013, OWCP denied appellant’s recurrence of disability
beginning July 26, 2013 finding that the medical evidence was insufficient to establish that he
was unable to work as of July 26, 2013 as a result of the April 9, 2013 employment injury.
In a letter postmarked October 22, 2013, appellant requested an oral hearing.
In a November 11, 2013 report, Dr. Kennard related appellant’s complaints of persistent
right knee pain. He noted that appellant had known degenerative joint disease affecting the right
knee after a traumatic injury of mild degree. Upon examination, Dr. Kennard observed localized
tenderness over the medial joint line of both knees. He also noted a small amount of synovitis in
the left knee and small effusion in the right. Range of motion was full in both knees.
McMurray’s test was positive. Dr. Kennard diagnosed osteoarthritis involving the lower leg,
sprain of medial collateral ligament of the knee, tear of medial cartilage or meniscus of the knee.
On November 27, 2013 appellant underwent approved right knee arthroscopy.3
submitted a November 27, 2013 operative report and various physical therapy reports.

He

In a December 9, 2013 report, Dr. Kennard related appellant’s complaints of pain. He
stated that arthroscopic evaluation revealed a tear in the medial meniscus and intercondylar
trochlear groove damage. Dr. Kennard reported that examination revealed no deformity and full
flexion. McMurray test remained mildly positive, localized to the medial joint. Dr. Kennard
diagnosed osteoarthritis, localized primarily involving the lower leg.
In a December 23, 2013 work capacity evaluation form, Dr. Kennard noted that appellant
was not capable of performing his usual job. He stated that appellant had right knee arthroscopy
and should not work until approximately February 5, 2014.
On March 8, 2014 appellant returned to unrestricted duty.
On March 11, 2014 an oral hearing was held. Appellant’s counsel was present.
Appellant testified that from May to July 2013 he worked his regular duties but still experienced
a lot of knee pain and swelling. He explained that he drove, walked, and dismounted routes
every day. Appellant reported that he was awaiting the results of an MRI scan, which took a few
months. When the MRI scan examination revealed a tear, his physician advised him to have an
operation and to wait about 10 days. Appellant told his physician that “he would hold out as
long as he could, but his leg was really bothering him.” He stated that within five days “he could
not handle the pain and swelling in his right knee anymore.” Appellant called his physician who
3

The record reveals that on November 29, 2013 appellant filed another recurrence claim and several claims for
ongoing disability alleging that on November 27, 2013 he underwent right knee surgery. OWCP subsequently
accepted this recurrence of disability claim and began paying compensation for temporary total disability effective
November 27, 2013. On February 21, 2014 appellant was placed on the periodic rolls.

3

advised him to stay out of work until the surgery was completed. He reported that he underwent
surgery on November 27, 2013 and returned to work on March 8, 2014. Appellant testified
further that he continued to experience pain in both knees.
In a May 8, 2014 report, Dr. Kennard stated that he examined appellant on April 16, 2013
for a right knee injury sustained on April 9, 2013. He noted that the examination revealed mild
synovitis, minimal effusion, and positive McMurray test. Dr. Kennard referred appellant for an
MRI scan, which showed a complex tear of the posterior horn of the medial meniscus in the right
knee, along with chondromalacia. He related that he examined appellant again on July 18, 2013
and advised him that he was requesting authorization for surgery. Dr. Kennard stated that
approximately one week after the appointment appellant called his office with complaints of
markedly increased knee pain, especially while bending, and increased swelling while working.
He advised appellant that due to the complex tear and chondromalacia of the patella, appellant
could work only if the employer could accommodate sedentary duty. Dr. Kennard reported that
sedentary duty was not available for appellant so he stopped work while waiting for
authorization for surgery. He stated that appellant had surgery on November 27, 2013 and
remained out of work until March 8, 2014.
In a May 12, 2014 letter, appellant’s attorney stated that in addition to the evidence
submitted at the April 16, 2014 hearing he was including a new report from Dr. Kennard which
showed that appellant was unable to work from July 26, 2013 until the date of surgery due to the
April 9, 2013 employment injury.
In a decision dated June 25, 2014, an OWCP hearing representative affirmed the
October 4, 2013 denial decision finding that the medical evidence was insufficient to establish
that he was unable to work beginning July 26, 2013 as a result of his April 9, 2013 employment
injury.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.4 An employee who claims a
recurrence of disability due to an accepted employment-related injury has the burden of
establishing by the weight of the substantial, reliable, and probative evidence that the disability
for which he or she claims compensation is causally related to the accepted injury. This burden
of proof requires that an employee furnish 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

4

20 C.F.R. § 10.5(x).

4

reasoning.5 Where no such rationale is present, medical evidence is of diminished probative
value.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 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.8
ANALYSIS
OWCP accepted that appellant sustained right knee contusion and right medial meniscus
tear as a result of an April 9, 2013 employment injury. Appellant stopped work and returned to
full duty on April 18, 2013. On July 26, 2013 he stopped work again. Appellant filed a
recurrence of disability and various claim forms requesting disability compensation beginning
July 26, 2013. OWCP denied his claim for recurrence of disability finding that the medical
evidence failed to establish that he was disabled from work beginning July 26, 2013 as a result of
the April 9, 2013 employment injury. The Board finds that appellant failed to establish a
recurrence of disability on July 26, 2013.
In support of his recurrence claim, appellant submitted reports dated July 18, 2013 to
May 8, 2014 by Dr. Kennard who related appellant’s complaints of continued pain, discomfort,
and swelling in the right knee. Upon examination, Dr. Kennard observed patellar tenderness and
small effusion. Range of motion was full in both knees. McMurray’s test was positive.
Dr. Kennard also noted that an MRI scan revealed a tear of the posterior and medial meniscus of
the right knee. He diagnosed osteoarthritis and tear of medial cartilage or meniscus of the knee.
In a July 18, 2013 note, Dr. Kennard opined that appellant could work for another 10 days while
awaiting approval for surgery. In a May 8, 2014 report, he stated that appellant called his office
approximately one week after the July 18, 2013 examination with complaints of markedly
increased knee pain. Dr. Kennard advised appellant that due to the complex tear and
chondromalacia of the patella he could only work sedentary duty. He reported that appellant’s
employer could not accommodate sedentary duty so appellant stopped work. The Board notes,
however, that Dr. Kennard does not provide any medical rationale for why appellant could only
work sedentary duty on July 23, 2013 as a result of his accepted April 9, 2013 employment
injury. His report is also vague as he does not provide any dates for the claimed disability, rather
he only states that it was approximately one week after appellant’s July 18, 2013 examination.
Furthermore, the Board notes that in his July 18, 2013 report, Dr. Kennard opined that appellant
could work for 10 days. Thus, the Board finds that his reports are contradictory regarding
whether appellant was unable to work on July 23, 2013. Without medical reasoning showing
5

See Ronald C. Hand, 49 ECAB 113 (1997).

6

Thaddeus J. Spevack, 53 ECAB 474 (2002).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

how appellant was unable to work on July 26, 2013 as a result of the April 9, 2013 employment
injury, the Board finds that these reports are of diminished probative value.9
The additional April 9 and July 10, 2013 MRI scan reports are likewise insufficient to
establish appellant’s recurrence claim. Although they provide findings on examination and a
firm diagnosis, they do not specifically address whether appellant’s disability beginning July 23,
2013 was related to the April 9, 2013 injury.10
On appeal, appellant’s counsel alleged that appellant met his burden of proof to establish
his claim. Counsel pointed out that the July 10, 2013 MRI scan showed that appellant still had a
complex tear of the right knee. As noted above, however, while the MRI scan examination
revealed that appellant still suffered from a right knee condition, there was no opinion or
explanation for a determination that appellant was unable to work beginning July 23, 2013.
Counsel further alleged that OWCP should have developed the medical evidence and had a
second opinion examination. The decision to refer a case for a second opinion examination rests
wholly with an OWCP claims examiner.11 Appellant has not submitted sufficient medical
evidence explaining how his disability beginning July 23, 2013 was causally related to his
accepted employment injuries. Accordingly, the Board finds that appellant has not met his
burden of proof to establish his recurrence 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.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability on July 23, 2013 causally related to the April 9, 2013 employment injury.

9

E.A., 58 ECAB 677 (2007).

10

D.P., Docket No. 14-1256 (issued March 9, 2015); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.5000.3(a) (July 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2015
Washington, DC

Christopher J. Godfrey, 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
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 21-0056
Issued: August 19, 2021

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 October 14, 2020 appellant filed a timely appeal from June 1 and September 11, 2020
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 13, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 11, 2020 decision and on appeal, appellant submitted 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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 23, 2020 appellant, then a 52-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 13, 2020 she injured her back, legs, arms, and
wrists while in the performance of duty. She explained that she was involved in a motor vehicle
accident (MVA) when her employing establishment vehicle was struck by a truck. On the reverse
side of the claim form the employing establishment indicated that on April 13, 2020 appellant was
injured while in the performance of duty. Appellant stopped work on April 14, 2020.
An April 13, 2020 attending physician’s report, Part B of an authorization for medical
examination and/or treatment (Form CA-16) signed by Maureen Keenan, a family nurse
practitioner, indicated that appellant was injured at work when her vehicle was rear-ended.
Ms. Keenan noted that appellant had no history of a concurrent or preexisting injury, and her
findings included spine and right shoulder pain and tenderness in the lateral aspect of the right hip
upon palpation. She diagnosed right shoulder and lumbar strains and a right hip contusion, and
she indicated that appellant’s diagnoses were caused or aggravated by her employment incident.
Ms. Keenan additionally stated that appellant could resume light work.
In another April 13, 2020 report, Ms. Keenan diagnosed a strain of the muscle, fascia, and
tendon of the lower back, a right thigh contusion, and a strain of an unspecified muscle, fascia, or
tendon at the right shoulder/upper arm. She also listed appellant’s work restrictions.
An April 13, 2020 duty status report (Form CA-17) completed by Ms. Keenan indicated
that appellant was injured at work on April 13, 2020. Clinical findings were listed as right hip
pain, lumbar tenderness, and a right hip contusion, and appellant was diagnosed with right shoulder
and low back strains due to the April 13, 2020 incident. The report additionally listed appellant’s
work restrictions.
In a development letter dated April 27, 2020, OWCP informed appellant that additional
evidence was needed in support of her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP
provided 30 days for appellant to submit the requested evidence.
In another report related to appellant’s evaluation on April 13, 2020, Ms. Keenan indicated
that appellant related that, after the claimed employment incident, she experienced pain in her
waist, right leg, right shoulder, right hip, and the right side of her neck and back. Appellant stated
that she had no relevant medical history, and a right shoulder physical examination revealed
tenderness, pain upon palpation, limited range of motion with pain, bilateral deep tendon reflexes
at 2/4, and a rotator cuff test indicated a positive painful arc. A right hip physical examination
revealed tenderness, full range of motion with pain, and bilateral deep tendon reflexes at 2/4, and
a lumbar spine physical examination revealed right-sided paraspinal tenderness, muscle spasms,
and full range of motion with pain. Ms. Keenan diagnosed lumbar region strain, right hip and
thigh contusions, and a right shoulder muscle strain. She indicated that appellant could return to
work with restrictions.
A May 12, 2020 Form CA-17 signed by Matthew Abad, a physician assistant, indicated
that appellant was injured at work on April 13, 2020 and sustained injury to her back, legs, and

2

arms. Clinical findings were listed as pain and spasms in appellant’s back and lower back, and
appellant was diagnosed with cervicalgia and lower back pain due to the April 13, 2020 incident.
The report additionally listed appellant’s work restrictions.
An April 16, 2020 report by Ms. Keenan related that appellant presented for a follow-up
appointment regarding her arm, back, and neck injuries from April 13, 2020 and complained of
low back and hip pain radiating into her lateral thigh. Ms. Keenan reviewed appellant’s medical
history, conducted a physical examination, and continued to diagnose lumbar region strain, right
hip and thigh contusions, and a right shoulder muscle strain. She additionally indicated that
appellant could return to work with restrictions.
By decision dated June 1, 2020, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish a diagnosed medical condition in
connection with the accepted April 13, 2020 employment incident. OWCP concluded, therefore,
that the requirements had not been met to establish an injury as defined under FECA.
On June 15, 2020 appellant requested reconsideration.
A June 22, 2020 Form CA-16 signed by the employing establishment listed appellant’s
date of injury as April 13, 2020 and authorized treatment as medically necessary for the effects of
the injury.
A June 9, 2020 attending physician’s report, Part B of Form CA-16, signed by Mr. Abad
indicated that on April 13, 2020 appellant was injured in an MVA at work and had no history of a
concurrent or preexisting injury. Findings were recorded as including lower back and right elbow
pain, and the report indicated that appellant’s condition was caused by the April 13, 2020
employment incident. Mr. Abad also noted that appellant was totally disabled from April 20 to
June 20, 2020 and could resume light work on July 1, 2020. The report also listed appellant’s
work restrictions.
An undated letter from Mr. Abad indicated that appellant was under his care due to her
recent MVA. He stated that she sustained injuries that limited her ability to work and listed her
work limitations.
June 23, July 7, and August 4, 2020 CA-17 form reports signed by Mr. Abad noted
appellant’s history of injury and related that she injured her back, hip, and shoulder. These reports
described clinical findings as including pain and decreased range of motion and advised for
appellant to not resume work.
An August 27, 2020 Form CA-17 from Mr. Abad indicated that on April 13, 2020
appellant was injured in an MVA. Clinical findings were listed as back pain and appellant was
diagnosed with a lumbar disc protrusion. The report recommended for appellant to return to work
full time on August 29, 2020.
By decision dated September 11, 2020, OWCP denied modification of its June 1, 2020
decision.

3

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 of FECA,4 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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. 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 the
specific employment incident.9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish right hip and thigh
contusions causally related the accepted April 13, 2020 employment incident.
On the date of injury, appellant was seen by Ms. Keenan, a nurse practitioner. In multiple
reports dated April 13 and 16, 2020, she diagnosed, among other things, right hip and thigh
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q).
8

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

4

contusions. OWCP’s procedures provide that, if a condition reported is a minor one, such as a
burn, laceration, insect sting, or animal bite, which can be identified on visual inspection by
a lay person, a case may be accepted without a medical report. 10 As the evidence of record
establishes diagnosed visible injuries, the Board finds that appellant has met her burden of proof
to establish right hip and thigh contusions causally related to the accepted April 13, 2020
employment incident.11
The Board further finds, however, that appellant has not met her burden of proof to
establish additional medical conditions causally related to the accepted April 13, 2020 employment
injury.
In support of her claim, appellant submitted multiple reports dated April 13 and 16, 2020
signed by Ms. Keenan, a family nurse practitioner. OWCP also received multiple reports dated
from May 12 to August 27, 2020 from Mr. Abad, a physician assistant. However, the Board has
held that certain healthcare providers such as physical therapists, nurses, nurse practitioners,
physician assistants, and social workers are not considered physicians as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
causal relationship. As such, this evidence is of no probative value and insufficient to meet
appellant’s burden of proof.13
As appellant has not submitted rationalized medical evidence establishing additional
diagnosed medical conditions causally related to the accepted April 13, 2020 employment
incident, she has not met her burden of proof.14
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 established right hip and thigh contusions causally
related to the accepted April 13, 2020 employment incident. The Board further finds, however,

10
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020).
11

See W.R., Docket No. 20-1101 (issued January 26, 2021); S.K., Docket No. 18-1411 (issued July 22, 2020).

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see B.W., Docket No. 20-1027 (issued November 18, 2020); K.W., 59
ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or
certified nurse practitioner will not be considered medical evidence unless countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
13

Id.

14

C.W., Docket No. 20-1027 (issued November 18, 2020); J.T., Docket No. 18-1755 (issued April 4, 2019).

5

that appellant has not met her burden of proof to establish a diagnosed medical condition causally
related to the accepted employment injury.15
ORDER
IT IS HEREBY ORDERED THAT the September 11 and June 1, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and reversed in part.
Issued: August 19, 2021
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

15

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); C.B., Docket No.
19-1882 (issued April 1, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., claiming as personal representative of the
estate of D.S., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0326
Issued: February 13, 2018

Case Submitted on the Record

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

JURISDICTION
On November 29, 2016 appellant, through counsel, filed a timely appeal from an
October 24, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
employee had sustained a recurrence of disability commencing on July 12, 2012 causally related
to the accepted June 5, 2008 employment injury; and (2) whether appellant has met his burden of
proof to establish that the employee sustained an emotional condition as a consequence of the
accepted June 5, 2008 employment injury.
On appeal counsel contends that the employee developed depression as a consequence of
his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth
below.
On June 16, 2008 the employee, then a 38-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that, on June 5, 2008, he sustained right hip and lateral thigh
cutaneous femoral nerve syndrome as a result of his gun belt compressing the nerves in his right
hip while getting in and out of a patrol car and ascending and descending stairs at work. He
stopped work on June 10, 2008 and returned to limited duty on June 23, 2008.
By decision dated November 21, 2008, OWCP denied the employee’s claim as the
medical evidence of record was insufficient to establish that the diagnosed medical condition
was causally related to the accepted employment incident. On July 22, 2009 an OWCP hearing
representative affirmed this decision. By decision dated June 21, 2010, the Board set aside the
July 22, 2009 decision and remanded the case to OWCP to further develop the medical
evidence.3 Following further development of the medical evidence, on October 17, 2011,
OWCP accepted the employee’s claim for right-sided lumbosacral intervertebral disc
impingement.
On January 8, 2013 the employee filed a recurrence claim (Form CA-2a) alleging a
recurrence of disability on July 1, 2009 due to his accepted June 5, 2008 employment injury. He
stopped work on July 12, 2012. In an accompanying undated statement, the employee noted
that, after his original right hip injury, he returned to restricted duty.4 He related that he was
unable to perform certain jobs while working within his restrictions. The employee became
depressed as a result of the way he was treated at work and due to his pain and limitations. He
indicated that his depression was so bad that he was placed off work by Dr. M. David Lauter, an
attending Board-certified family practitioner.

3

Docket No. 09-2107 (issued June 21, 2010), denying petition for recon., Docket No. 09-2107 (issued
November 16, 2010).
4
The record indicates that, following the June 5, 2008 employment injury, appellant returned to a temporary
limited-duty position as a traffic administrator, 10 hours a day, four days a week with restrictions.

2

OWCP received several medical records from Dr. Lauter. In treatment notes dated
August 16, 2007 to December 28, 2012, Dr. Lauter addressed the employee’s back and hip pain
and depression. He advised that his condition was static and no further recovery or remission
was expected. Dr. Lauter listed the employee’s physical limitations which were in effect
indefinitely.5 On November 21, 2008 and June 6, 2012 he found that the employee had neuralgia
paraesthetic based on his history of chronic trauma/pressure to the area and distribution of pain
consistent with his history. Dr. Lauter related that the onset of this condition occurred
June 5, 2008. He reiterated that no further recovery or remission was expected. In July 24 and
September 11, 2009 prescriptions, Dr. Lauter limited the employee to working no more than 10
hours a day, four days a week due to neuralgia parathestica and other medical issues. On
July 29, 2011 he noted that in 2008 the employee had a chronic injury to his right hip and thigh
from his gun belt. Dr. Lauter indicated that the employee had been working 40 hours a week as
a traffic administrator for two years, despite having pain that perhaps had worsened. He advised
that slow deterioration was likely. Dr. Lauter further advised that the employee could continue
to work 40 hours a week within restrictions. He noted that he was on medication for depression.
In an August 22, 2012 note, Dr. Lauter reported that the employee had continued depression for
which he took medication. He advised that his condition was due to issues related to work and
his injury. Dr. Lauter related that the employee was unable to work.6 On January 15, 2013 he
again noted that the employee suffered from depression. Dr. Lauter related that he believed that
this condition was probably directly related to his injury, disability, and how he was treated at
work. He indicated that his prognosis was poor and addressed the employee’s treatment plan.
In September 17, 2008 to August 4, 2010 reports, Dr. William S. Sutherland, a Boardcertified orthopedic surgeon, noted the employee’s right groin and hip symptoms. He reported
findings and provided an impression of an unusual nerve type syndrome involving anterior thigh
and groin symptoms that appeared neurologic in nature and may be related to the employee’s
previous hernia pathology and surgery or may also be an unusual meralgia paresthetica.
Dr. Sutherland noted that the employee was performing light-duty work.
By letter dated March 13, 2013, counsel asserted that the employee had depression which
his physicians confirmed was related to his accepted injury and resultant disability. He noted
that the employee was terminated from the employing establishment effective January 25, 2013
due to his medical inability to perform his full range of duties. Counsel claimed that his medical
inability was caused before July 2012, by his accepted injury. He requested wage-loss
compensation benefits as of January 25, 2013.

5

In an August 31, 2007 note, Dr. Lauter noted that on May 11, 2007 appellant had a left inguinal hernia and was
off work for three weeks. The record contains May 12 to September 27, 2007 reports from Dr. Peter K. Carter, a
Board-certified surgeon, who diagnosed left inguinal hernia and noted surgically repairing this condition. He
subsequently released the appellant to return to full normal activity.
6

A February 15, 2012 lumbar spine magnetic resonance imaging (MRI) scan report noted no significant disc
bulge or herniation. There was some borderline mild central stenosis at L3-4 and L4- 5, likely in part due to some
congenital shortening of the pedicles. Also noted was right neural foraminal narrowing at L3-4, borderline mild
narrowing bilaterally at L4-5, and facet joint arthrosis with some reactive marrow edema in the right facet at Ll-2.

3

In a May 23, 2013 letter, OWCP advised the employee of the deficiencies of his
recurrence claim and requested that he submit additional medical and factual evidence. The
employee was afforded 30 days to provide additional evidence in support of his claim.
On June 12, 2013 the employee reiterated that he was unable to perform restricted-duty
work after his original right hip injury due to depression, pain, and restrictions. He maintained
that he had no preexisting depression or emotional problems. OWCP also received a
February 15, 2013 medical marijuana program certification signed by Dr. Patrick Mulcahy, a
Board-certified family practitioner. Dr. Mulcahy certified the employee’s participation in the
program through August 13, 2013.
By decision dated July 11, 2013, OWCP denied the employee’s claim for a recurrence of
disability. It also found that the evidence of record was insufficient to establish that his
emotional condition was a consequence of his accepted June 5, 2008 employment injury.
In a September 13, 2013 letter, counsel requested reconsideration. He submitted a
September 4, 2013 report from Dr. Craig E. Stenslie, a clinical psychologist. Dr. Stenslie
reviewed the employee’s medical and employment records and personal history. He interviewed
the employee and reported a Beck Depression Inventory score of 47. This score indicated a
severe and quite significant level of clinical depression with a high level of vegetative signs and
symptoms. Dr. Stenslie related that the data was indicative of moderate-to-severe major
depression with a single lengthy and essentially unbroken episode caused by the 2008 right hip
work injury as noted in prior medical records that he reviewed. These records clearly indicated
that the employee was under stress and depressed due to his concern about loss of work and
difficulty coping with the pain of injury, perceived negative treatment and lack of
accommodation at work, and his physical limitations which were secondary to his 2008 injury.
Based on testing, the employee’s mental status, content of his thinking, and his emotional state in
an extended interview on August 2013, Dr. Stenslie advised that the employee showed multiple
signs of clinical depression, including low mood, a sense of hopelessness and helplessness,
vague suicidal ideation, low energy, low interest in activities previously enjoyed and
accomplished, social isolation, and irritability. He opined that his depression stemmed directly
from his 2008 hip injury and subsequent pain and loss of physical function, including problems
with dressing himself; limitations in lifting, walking, and any type of vigorous physical activity;
and ultimately loss of ability for gainful employment.
Dr. Stenslie related that the employee had no previous history of depression and there
was no reason to believe the employee would have developed depression or had a propensity to
develop depression absent some type of catastrophic life event or circumstances such as the
significant 2008 physical work injury and his subsequent loss of ability for physical activity and
gainful employment. The employee’s depression was also exacerbated by his difficulties in his
relationship with his daughter. However, Dr. Stenslie maintained that there was no evidence
historically to suggest that his depression was caused by difficulties with his daughter or his
divorce, including difficulties with his ex-wife. He pointed out that the employee had worked at
the employing establishment without significant depression after his divorce and while raising
his daughter as a divorced parent. Dr. Stenslie opined that the employee’s difficulties with his
daughter and any exacerbation of his depression regarding these difficulties with her almost
undoubtedly stemmed from his deteriorating physical, mental, and emotional status over the past

4

year and a half or so and his stated embarrassment regarding his deteriorated status. He related
that the employee required ongoing treatment.
The employee died on February 4, 2014 due to a stroke. On February 18, 2014 counsel
appealed OWCP’s July 11, 2013 decision to the Board.7 By order dated June 3, 2014, the Board
dismissed the appeal.8
By decision dated June 4, 2014, OWCP denied modification of its July 11, 2013 decision.
It found that Dr. Stenslie did not provide a rationalized medical opinion sufficient to establish
causal relationship between the employee’s emotional condition and the accepted June 5, 2008
employment injury.
By letter dated August 7, 2014, received by OWCP on March 27, 2015, counsel
requested reconsideration and submitted an additional report from Dr. Stenslie. In a July 23,
2014 addendum, Dr. Stenslie related that he sought to provide a specific and rationalized opinion
on causal relationship. He again reviewed prior findings noted in the medical record regarding
the employee’s emotional condition. Dr. Stenslie reiterated his prior finding that there was no
evidence that the employee was depressed before 2008, including secondary to his divorce or
previous injury which led to him ending a potential career as a professional golfer. He noted
that, until 2008, the employee maintained gainful employment, an active lifestyle, a copacetic
relationship with his ex-wife, and an ongoing relationship with his daughter. The employee
indicated that being police officer was very important to him and that he felt he was quite
talented for the job. Dr. Stenslie opined that the historical and psychological evidence indicated
that his work had become intrinsic to his identity and sense of value, as having been the one
thing he was good at and the source of financial stability for himself and his family and positive
feelings about himself. He further opined that the causal connection between the employee’s
depression and what the employee referred to as high levels of stress in his life ran directly from
his physical injury to his depression in his inability to continue with employment in law
enforcement. Dr. Stenslie related that in his opinion, the evidence was clear that he was not
depressed about family relationships, noting that his troubled relationship with his daughter
occurred much later and well after his 2008 work injury. He advised that other factors such as,
loss of recreational activities and disappointment with how the employee was treated at work,
were decidedly secondary to the main cause of his depression, which was his physical injury that
precluded work in law enforcement.
On August 10, 2016 OWCP requested that the employing establishment submit
information regarding the employee’s employment and treatment in its health unit. In response,
it received medical and employment records, which included a January 25, 2013 Notification of
Personnel Action (Form SF-50B) indicating that the employee was removed from the employing
establishment effective that day due to his medical inability to perform the full range of his work
duties.

7

In a subsequent letter dated April 2, 2014, counsel withdrew the appeal before the Board. He stated that he
wished to seek reconsideration before OWCP.
8

Order Dismissing Appeal, Docket No. 14-0445 (issued June 3, 2014).

5

By decision dated October 24, 2016, OWCP denied modification of its June 4, 2014
decision. It found that the employee had not established a recurrence of total disability
commencing on July 12, 2012 and that Dr. Stenslie’s July 23, 2014 addendum was insufficient to
establish that the employee’s emotional condition was caused by a compensable employment
factor.
LEGAL PRECEDENT -- ISSUE 1
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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.9
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.10 To establish a
change in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.11
In the absence of rationale, the medical evidence is of diminished probative value.12 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.13
ANALYSIS -- ISSUE 1
The Board finds that the employee has failed to establish a recurrence of total disability
commencing on July 12, 2012 causally related to the accepted employment injury.

9

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
10

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

11

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

12

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

13

Ricky S. Storms, 52 ECAB 349 (2001).

6

OWCP accepted that the employee sustained right-sided lumbosacral intervertebral disc
impingement in the performance of duty. As of July 12, 2012, the employee was performing
limited-duty work, 10 hours a day, 4 days a week with restrictions. He claimed disability
compensation commencing on July 12, 2012, stating that he was depressed due to his treatment
at work and his inability to perform his work duties due to pain and limitations.
The Board finds that the employee has not submitted sufficient medical opinion evidence
to establish his claimed period of disability. Dr. Lauter’s January 15, 2013 report found that the
employee suffered from depression. He related that he believed the employee’s condition was
“probably” directly related to his injury, disability, and treatment at work. Dr. Lauter’s
August 22, 2012 notes found that the employee had continued depression for which he took
medication. He advised that the employee was unable to work. Dr. Lauter opined that his
condition was due to issues related to work and his injury. The Board notes that OWCP did not
accept depression or any other emotional condition as causally related to the employee’s
employment.14 Furthermore, Dr. Lauter’s opinion on causal relationship is speculative in nature
and insufficiently rationalized. The Board has held that medical opinions which are speculative
or equivocal are of diminished probative value.15 Furthermore, a mere conclusion without the
necessary rationale explaining how work activities could result in the diagnosed condition is
insufficient to meet the employee’s burden of proof.16 Dr. Lauter’s opinion is of limited
probative value as it does not contain any medical rationale explaining how the accepted rightsided lumbosacral intervertebral disc impingement caused or contributed to the claimed
disability beginning July 12, 2012.
Other reports from Dr. Lauter either predate the alleged recurrence of disability or fail to
offer an opinion addressing whether the employee’s diagnosed emotional condition was caused
by the accepted June 5, 2008 employment injury. The Board has held that medical evidence
which 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 The Board finds that Dr. Lauter’s reports
are insufficient to meet the employee’s burden of proof.
Dr. Stenslie’s reports attribute the employee’s disability to an emotional condition. As
noted, OWCP has not accepted an emotional condition. Dr. Stenslie did not otherwise provide a
rationalized opinion explaining how the accepted condition caused or contributed to the claimed

14

See T.M., Docket No. 08-975 (issued February 6, 2009) (when a claimant claims that a condition not accepted
or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized medical evidence).
15

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related, or could be related are speculative and diminish the probative
value of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
16

See D.P., Docket No. 17-0148 (issued May 18, 2017); Beverly A. Spencer, 55 ECAB 501 (2004).

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).

7

recurrence of disability beginning July 12, 2012. Thus, his reports are of diminished probative
value.18
The other medical evidence submitted, which primarily includes diagnostic studies, is of
limited probative value as it does not specifically address whether the employee’s recurrence of
disability beginning July 12, 2012 was causally related to the accepted right-sided lumbosacral
intervertebral disc impingement.19
The Board, therefore, finds that appellant has not met his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Once the primary injury is causally connected with the employment, Larson20 notes that,
when the question is whether compensability should be extended to a subsequent injury or
aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of the claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.21
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.22
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.23 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.24 Neither the mere fact that a disease or condition manifests itself during a period

18
See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981) (medical
reports without adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof).
19

See supra note 17.

20

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014).

21

Melissa M. Frederickson, 50 ECAB 170 (1998).

22

Charles W. Downey, 54 ECAB 421 (2003).

23

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

24

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

8

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.25
ANALYSIS -- ISSUE 2
The Board finds that the employee has not met his burden of proof to establish an
emotional condition as a consequence of his accepted employment injury.
Dr. Lauter’s January 15, 2013 report found that the employee suffered from depression.
He related that he believed the employee’s condition was “probably” directly related to his
injury, disability, and treatment at work. Dr. Lauter’s August 22, 2012 notes found that the
employee was depressed and unable to work. He opined that this condition was due to issues
related to work and the employee’s injury. The Board finds, however, that Dr. Lauter’s opinion
on causal relationship is speculative in nature and insufficiently rationalized. The Board has held
that medical opinions which are speculative or equivocal are of diminished probative value.26
Furthermore, a mere conclusion without the necessary rationale explaining how work activities
could result in the diagnosed condition is insufficient to meet the employee’s burden of proof.27
Dr. Lauter does not provide medical rationale explaining how the accepted June 5, 2008
employment injury caused or contributed to the diagnosed emotional condition.28 Other reports
from Dr. Lauter are of limited probative value as they do not specifically provide an opinion on
the causal relationship between the employee’s depression and the accepted June 5, 2008
employment injury.29 For these reasons, the Board finds that Dr. Lauter’s reports are insufficient
to meet the employee’s burden of proof.
Dr. Stenslie’s September 4, 2013 and July 23, 2014 reports found that the employee had
depression causally related to the accepted June 5, 2008 employment injury and his subsequent
loss of ability to perform physical activity and loss of gainful employment. He maintained that
the employee had no previous history of depression and, thus there was no reason to believe that
the employee had a propensity to develop depression absent a catastrophic life event or
circumstances, such as the 2008 work injury. A medical opinion, however, that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury, but symptomatic after it is insufficient, without supporting rationale, to establish causal
relationship.30 Dr. Stenslie did not adequately explain how the accepted employment injury

25

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

26

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related, or could be related are speculative and diminish the probative
value of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
27

See D.P., Docket No. 17-0148 (issued May 18, 2017); Beverly A. Spencer, 55 ECAB 501 (2004).

28

D.P., id.; S.H., Docket No. 16-1227 (issued February 9, 2017).

29

See supra note 17.

30

John F. Glynn, 53 ECAB 562 (2002).

9

caused or contributed to the employee’s emotional condition and resultant disability.31
Additionally, rationale is needed in view of Dr. Stenslie’s initial opinion provided in his
September 4, 2013 report that the employee’s condition was also exacerbated by his relationship
with his daughter. Dr. Stenslie also indicated that the employee may have had stress in his
relationship with his ex-wife and in the loss of a potential career as a professional golfer due to a
previous injury. While his July 23, 2014 addendum reiterated that the employee’s depression
was not the result of other stressors in the employee’s life, the reasoning for this opinion was
essentially that the employee was not depressed before the June 5, 2008 work injury. As noted, a
temporal relationship alone will not suffice for purposes of establishing causal relationship.32
Dr. Stenslie did not provide a fully rationalized opinion explaining why the diagnosed emotional
condition was caused or aggravated by the 2008 work injury and why it was not solely
attributable to nonwork factors.
The other remaining medical evidence of record, which primarily consists of diagnostic
studies, is also of diminished probative value as it does not address why the employee’s
emotional condition was attributable to the accepted June 5, 2008 lumbar injury.33
For these reasons, appellant has not established that the employee sustained an emotional
condition as a consequence of his June 5, 2008 work injury.
On appeal counsel contends that the employee developed depression as a consequence of
his accepted employment injury. The Board finds that the weight of the medical evidence does
not establish that the employee sustained an emotional condition causally related to the accepted
June 5, 2008 work injury.
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 the employee has not met his burden of proof to establish a
recurrence of disability commencing on July 12, 2012 causally related to his accepted
employment injury. The employee also did not meet his burden of proof to establish an
emotional condition as a consequence of his accepted employment injury.

31

See supra note 14; Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not
accepted or approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the
condition is causally related to the employment injury).
32

See supra note 30 and accompanying text.

33

Supra note 17.

10

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, KEYSTONE
STATION, Harrisburg, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1187
Issued: September 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 29, 2007 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated December 27, 2006 denying his traumatic injury claim
and a nonmerit decision dated March 6, 2007 denying his request for a hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over
the March 6, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
November 2, 2006; and (2) whether the Office properly denied his request for a hearing as
untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On November 8, 2006 appellant, then a 38-year-old city carrier, filed a claim for a
traumatic injury occurring on November 2, 2006 when he experienced severe pain in the left side
of his stomach after loading and lifting bags. He did not stop work. On the reverse side of the

claim form, a supervisor noted that appellant did not inform him of the injury at the time that it
occurred. The supervisor also indicated that he previously underwent surgery for a hernia in the
same location.
By letter dated November 20, 2006, the Office requested that appellant submit additional
factual and medical information in support of his claim within 30 days. The Office requested
further information about the occurrence of the injury, a description of any similar conditions
and a comprehensive medical report addressing causation. In a decision dated December 27,
2006, the Office denied his claim on the grounds that he did not establish that the incident
occurred at the time, place and in the manner alleged. The Office further noted that appellant
had submitted no medical evidence.
On a form dated January 11, 2007, postmarked January 27, 2007, appellant requested a
review of the written record. By decision dated March 6, 2007, the Office denied his request for
a review of the written record as untimely under section 8124.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability 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 an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.5 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.6
1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

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

6

Id.

2

ANALYSIS -- ISSUE 1
Appellant filed a traumatic injury claim on November 8, 2006 alleging that on
November 2, 2006 he sustained pain in the left side of his stomach due to loading and lifting
bags. His supervisor noted that he was not informed at the time of the injury and that appellant
had previously undergone a hernia repair in the same location. By letter dated November 20,
2006, the Office requested additional factual and medical information from appellant, including a
factual description of the events on November 2, 2006, a discussion of any preexisting condition
and a detailed medical report from his attending physician addressing the causal relationship
between any diagnosed condition and the November 2, 2006 employment incident. He did not
respond to the Office’s request for information within the allotted 30 days. When an employee
claims an injury in the performance of duty, the employee must submit sufficient evidence to
establish that he or she experienced a specific event, incident or exposure at the time, place and
in the manner alleged. The employee must also establish that such event, incident or exposure
caused an injury.7 Despite being provided the opportunity to do so, appellant did not submit the
evidence necessary to establish the factual or medical basis for his claim. Accordingly, the
Board finds that he has not established a prima facie claim for compensation.8
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing, states that:
“Before review under section 8128(a) of this title, a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary.”9 As
section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a hearing, a
claimant is not entitled to a hearing as a matter of right unless the request is made within the
requisite 30 days.10
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”11
Section 10.616(a) further provides, “A claimant injured on or after July 4, 1966, who had
received a final adverse decision by the district Office may obtain a hearing by writing to the
address specified in the decision. The hearing request must be sent within 30 days (as

7

Joseph W. Kripp, 55 ECAB (2003).

8

Subsequent to the Office’s last merit decision on December 27, 2006, appellant submitted additional factual and
medical evidence. The Board may not review this evidence for the first time on appeal; see 20 C.F.R. § 501.2(c).
This decision does not, however, preclude him from requesting reconsideration by the Office based on the newly
submitted evidence pursuant to 5 U.S.C. § 8128(a).
9

5 U.S.C. § 8124(b)(1).

10

Frederick D. Richardson, 45 ECAB 454 (1994).

11

20 C.F.R. § 10.615.

3

determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”12
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings, and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue.13 The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.14
ANALYSIS -- ISSUE 2
The Office issued a decision on December 27, 2006 denying appellant’s claim that he
sustained an injury on November 2, 2006 in the performance of duty. Appellant sought a review
of the written record by letter postmarked January 27, 2007. In a decision dated March 6, 2007,
the Office denied appellant’s hearing request on the grounds that it was untimely. As appellant’s
request for a hearing was postmarked January 27, 2007, more than 30 days after the Office
issued its December 27, 2006 decision, he was not entitled to a hearing as a matter of right.
The Office has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter of right.15 The Office properly
exercised its discretion by stating that it had considered the matter in relation to the issue
involved and denied appellant’s request for a review of the written record on the basis that the
case could be resolved by submitting additional evidence to the Office in a reconsideration
request. The Board has held that the only limitation on the Office’s discretionary authority is
reasonableness. An abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deduction from established facts.16 The evidence of record does not establish that the
Office committed any action in connection with its denial of appellant’s request for a review of
the written record which could be found to be an abuse of discretion. For these reasons, the
Office properly denied his request for a review of the written record as untimely under section
8124 of the Act.

12

20 C.F.R. § 10.616(a).

13

See André Thyratron, 54 ECAB 257 (2002).

14

Sandra F. Powell, 45 ECAB 877 (1994).

15

Afegalai L. Boone, 53 ECAB 533 (2002).

16

See André Thyratron, supra note 13.

4

CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on November 2, 2006. The Board further finds that the Office properly
denied his request for a hearing as untimely under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 6, 2007 and December 27, 2006 are affirmed.
Issued: September 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5