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

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

Docket No. 10-1995
Issued: May 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 29, 2010 appellant, through his attorney, filed a timely appeal from a decision of
the Office of Workers’ Compensation Programs dated July 7, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained any permanent impairment to a scheduled
member causally related to his accepted lumbar strain, coccyx contusion and back contusion
conditions.
FACTUAL HISTORY
Appellant, then a 47-year-old letter carrier, tripped and fell to the ground on October 27,
1998 while trying to avoid a menacing dog. He filed a claim for benefits under case File No.
1

5 U.S.C. § 8101 et seq.

xxxxxx059, which the Office accepted for lumbar strain and coccyx contusion. On
September 10, 1999 appellant filed a Form CA-2 claim for benefits, alleging that he sustained a
low back condition causally related to factors of his employment under case File No. xxxxxx669.
The Office accepted this claim for lumbar sprain and back contusions. The cases were combined
under case File No. xxxxxx669.
On February 12, 2009 appellant filed a Form CA-7 claim for a schedule award.
By letter dated June 30, 2009, the Office asked appellant to provide a medical report and
impairment evaluation from his attending physician pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th edition).
Appellant did not respond to this letter.
By decision dated January 27, 2010, the Office found that appellant had no ratable
impairment causally related to the accepted low back conditions and was not entitled to a
schedule award.
On February 2, 2010 counsel requested an oral hearing, which was held on
May 11, 2010. Appellant did not submit any medical evidence in support of his request. At the
hearing, he testified that one of the physicians who treated his back condition had died.
Appellant also indicated that another treating physician told him that he did not perform
impairment evaluations.
By decision dated July 7, 2010, an Office hearing representative affirmed the January 27,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all employees, 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.4
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, the Act authorizes schedule awards for only those members, organs and
functions of the body that are specified in the Act and in the implementing regulations.5 A
2

Id. at. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Thomas E. Montgomery, 28 ECAB 294 (1977).

2

schedule award is not payable under the Act for injury to the spine. An employee may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originates in the spine6
The burden is upon the employee to submit evidence that he sustained permanent
impairment to a member of the body covered by the schedule award provisions.7 The Board has
held that a treating physician should provide a description of the impairment, which must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.8
ANALYSIS
The Office accepted a lumbar strain, coccyx contusion and back contusions. Appellant
subsequently filed a claim for a schedule award. The Office asked him to submit a medical report
and impairment evaluation from a treating physician in support of his claim; but he did not provide
the medical evidence requested. Schedule awards are not granted for impairment to the spine or
back. Appellant must submit evidence that he sustained permanent impairment of a scheduled
member, causally related to the accepted employment conditions. He submitted no medical
evidence to establish any permanent impairment of his legs arising from the accepted low back
conditions.9
Appellant stated that he could not provide a medical report evaluating
impairment because one of his physicians died and the other did not perform
impairment evaluations. It is his burden of proof however to submit evidence of
impairment. Appellant did not meet his burden of proof to establish entitlement to
award. The Board will affirm the July 7, 2010 decision.

permanent
permanent
permanent
a schedule

CONCLUSION
The Board finds that appellant has not established any permanent impairment causally
related to his accepted lumbar strain, coccyx contusion and back contusion conditions.

6

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

7

D.H., 58 ECAB 358 (2007).

8

See Peter C. Belkind, 56 ECAB 580, 585 (2005).

9

N.M., 58 ECAB 273 (2007).

3

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 12, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Z., Appellant
and
DEPARTMENT OF THE ARMY, McALESTER
MUNITION PLANT, McAlester, OK, Employer
__________________________________________

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

Docket No. 12-1391
Issued: January 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2012 appellant filed a timely appeal from the December 29, 2011 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 established that he sustained a recurrence of disability
beginning April 24, 2007 due to his accepted March 27, 2006 employment injury.
On appeal, appellant contends that OWCP erred in its evaluation of the medical evidence
and that there is an unresolved conflict in the medical opinion evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. In a September 12, 2008
decision, the Board set aside a July 16, 2007 OWCP decision denying appellant’s recurrence
claim and a November 29, 2007 OWCP decision denying reconsideration and remanded the case
to OWCP for additional development of the medical evidence.2 The Board found the May 7,
2007 report from appellant’s treating physician, Dr. John W. Ellis, a Board-certified family
practitioner, while not completely rationalized as to whether appellant sustained a recurrence of
disability, was consistent in indicating that he had a worsening of his accepted condition. In a
second appeal, the Board in an October 19, 2010 decision affirmed a December 23, 2009 OWCP
decision denying appellant’s claim for a recurrence of disability commencing April 24, 2007.3
The Board found that appellant failed to establish that his recurrence of disability commencing
April 24, 2007 was causally related to his accepted March 27, 2006 lumbar sprain/strain. The
Board found the weight of the medical evidence rested with the opinion of Dr. Christopher
Jordan, a second opinion Board-certified orthopedic surgeon. The facts and the circumstances of
the case as set out in the Board’s prior decision are adopted herein by reference.4
The relevant medical evidence from the prior appeals is set forth below.
In his May 7, 2007 report, Dr. Ellis noted the history of appellant’s March 27, 2006
employment injury, his medical history, the medical treatment received and return to full-duty
work. He diagnosed lumbosacral muscle tendon strain, lumbar spine deranged disc and left
lower extremity radiculopathy, which he attributed to appellant’s employment injury. Dr. Ellis
reported that after appellant returned to full-duty work he continued to have “problems with
numbness and tingling of the left foot” and that appellant “is having the exact same complaints
that he was having as a result of the work-related injury of [March] 27, [20]06.” He noted that
appellant continued to have problems, particularly with his left leg, since returning to full duty
and that the condition progressively worsened until he sought treatment on April 24, 2007.
Dr. Ellis concluded that appellant was temporarily totally disabled due to the accepted March 27,
2006 employment injury.
In a March 7, 2009 report, Dr. Jordan reviewed appellant’s history of injury, magnetic
resonance imaging (MRI) scans, objective tests and medical treatment and he performed a
physical examination. He noted that the only physical finding he found on examination was in
the left sacroiliac joint region. Dr. Jordan stated that appellant’s injury would have resulted in a
muscle strain which would have resolved. Based on the objective test and physical examination,
he related that it was hard to attribute appellant’s subjective pain complaints to the accepted
employment injury. Lastly, Dr. Jordan noted that appellant had work restrictions as a result of
his limited spinal motion so that a sedentary job would be appropriate.
2

Docket No. 08-1033 (issued September 12, 2008).

3

Docket no. 10-735 (issued October 19, 2010).

4

On March 27, 2006 appellant, then a 45-year-old electrical worker, filed a traumatic injury claim alleging that
on that date he injured his lower back and left buttocks while lifting his leg to get into a truck. OWCP accepted the
claim for lumbar strain/sprain. Appellant filed a recurrence of disability claim on May 9, 2007, alleging that it
commenced on April 24, 2007.

2

In a May 6, 2009 addendum, Dr. Jordan stated that there was no evidence, based on his
examination, that appellant’s April 24, 2007 recurrence was causally related to the accepted
March 27, 2006 employment injury. In support of this conclusion, he stated that a December 13,
2008 electromyogram (EMG) was normal and a December 16, 2008 discogram was
nondiagnostic. In concluding, Dr. Jordan reiterated that appellant’s symptoms were not causally
related to the accepted March 27, 2006 employment injury.
In a July 28, 2011 report, Dr. M. Stephen Wilson, an examining physician, provided
physical findings and a permanent impairment rating. He opined that as a result of appellant’s
employment injury and activities that he sustained a significant lumbar spine injury. Dr. Wilson
reported that appellant felt sharp lower back pain with radicular symptoms going into his left
lower extremity while getting into the passenger side of a truck at work on March 26, 2006. He
reported that an April 3, 2006 MRI scan revealed L2-L5 narrowing of the neural foramen, a
pronounced L2 and L3 disc bulge, a central disc bulge at L5 and moderate disc bulge at L4.
On September 29, 2011 counsel requested reconsideration and argued that there was an
unresolved conflict in the medical opinion evidence regarding the denial of appellant’s
recurrence claim between Dr. Ellis, appellant’s treating physician, and Dr. Jordan, a second
opinion Board-certified orthopedic surgeon. He also contends that the report from Dr. Wilson is
new, pertinent and requires further development of the medical evidence.
By decision dated December 29, 2011, OWCP denied modification. It found the
evidence and argument submitted by appellant was insufficient to warrant modification on the
denial of appellant’s recurrence claim.
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 has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.5 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.6
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and

5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).

3

accurate medical and factual background of the claimant.7 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.8
ANALYSIS
OWCP accepted appellant’s claim for a lumbar strain/sprain. Appellant filed a claim for
a recurrence of disability beginning April 24, 2007 due to his accepted employment injury.
OWCP denied his claim based on the opinion of Dr. Jordan, a second opinion Board-certified
orthopedic surgeon, who concluded that appellant’s disability was unrelated to his accepted
employment injury. The issue on appeal is whether appellant has established his recurrence of
disability on and after April 24, 2007 due to his accepted March 27, 2006 employment injury.
In support of his reconsideration request, appellant submitted a report from Dr. Wilson
who diagnosed a significant lumbar spine injury. Dr. Wilson provided an impairment rating for
appellant and opined that his sustained a significant injury as a result of the employment injury.
He offered no opinion as to whether appellant was disabled from working due to his accepted
March 27, 2006 employment injury beginning April 24, 2007. As Dr. Wilson’s report did not
address the period of appellant’s alleged disability, it is of diminished probative value and
insufficient to establish appellant’s claim for a recurrence of disability.9
On appeal, appellant contends that there is an unresolved conflict in the medical opinion
evidence between Dr. Jordan and Dr. Ellis. However, the Board addressed this issue in the prior
appeal when it found there was no conflict in the medical opinion evidence between Dr. Jordan
and Dr. Ellis. As noted above, the Board found Dr. Jordan’s opinion constituted the weight of
evidence when it affirmed the denial of appellant’s recurrence claim. The Board also found
Dr. Ellis’ opinion was insufficient to create a conflict with Dr. Jordan’s opinion on this issue.
Therefore, the issue of whether there was a conflict in the opinion evidence between Dr. Jordan
and Dr. Ellis is res judicata and not subject to further consideration.10
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 failed to establish that he sustained a recurrence of
disability on and after April 24, 2007 due to his accepted March 27, 2006 employment injury.

7

Conard Hightower, 54 ECAB 796 (2003).

8

Albert C. Brown, 52 ECAB 152 (2000).

9

See Sandra D. Pruitt, 57 ECAB 126 (2005).

10

A decision of the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R.
§ 501.6(d). See also Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 29, 2011 is affirmed.
Issued: January 28, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL OFFICE, POST OFFICE,
Canton, MS, Employer
__________________________________________

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

Docket No. 21-0789
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 1 appellant filed a timely appeal from an October 7, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 19, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f).
One hundred and eighty days from October 7, 2020, the date of OWCP’s last decision, was April 5, 2021. Since using
April 12, 2021, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). As appellant’s
appeal request was postmarked April 1, 2021, the appeal is, therefore, timely.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 7, 2020 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2020 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 23, 2020 she injured her right arm and shoulder when
trying to catch a heavy package that slipped out of her hand while in the performance of duty. She
stopped work on the date of injury.4
In support of her claim, appellant submitted hospital records, including a January 24, 2020
discharge summary and emergency department reports from Dr. Richard Miles, Board-certified in
emergency medicine, who diagnosed right rotator cuff strain.
By decision dated March 6, 2020, OWCP accepted the claim for sprain of right rotator cuff
capsule (right rotator cuff syndrome) and sprain of right acromioclavicular (AC) joint (right AC
joint arthrosis). It paid appellant wage-loss compensation on the supplemental rolls from March 9
through April 28, 2020.5
In a March 27, 2020 initial report, Theresa Koerber, a field nurse OWCP assigned to
appellant’s claim, noted diagnoses of right rotator cuff syndrome and sprain of right
acromioclavicular (AC) joint (right AC joint arthrosis).
In March 27 and April 3, 2020 letters and an April 6, 2020 work capacity evaluation for
musculoskeletal conditions (Form OWCP-5c), Dr. William B. Geissler, a Board-certified
orthopedic surgeon, advised that appellant could return to light-duty work with restrictions of no
reaching overhead, pushing, pulling, or lifting over five pounds. He indicated that appellant
received an injection to the right shoulder and was undergoing physical therapy treatment for her
diagnosed rotator cuff syndrome. Dr. Geissler also provided restrictions limiting his work
schedule to 6:00 a.m. to 6:00 p.m.
On May 15, 2020 the employing establishment offered appellant a limited-full-time
position as a modified rural carrier, effective May 23, 2020. The duties included: surface visibility
scanning for two to four hours per day and quality checks on mail transport equipment for four to
seven hours per day. The tour of duty was from 9:30 p.m. to 6:00 a.m. The physical requirements
included: no pulling or pushing over five pounds and no reaching overhead.
In a May 22, 2020 statement, appellant noted that she had concerns about her medical
limitations and requested reasonable accommodation from the employing establishment. She
4

On January 24, 2020 the employing establishment executed an authorization for examination and/or treatment
(Form CA-16).
5
On July 31, 2020 appellant filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx968
alleging that she reinjured her right shoulder when she fainted on June 26, 2020 while in the performance of duty.
OWCP denied that claim, finding that the evidence of record was insufficient to establish the factual component of
fact of injury. This claim is not presently before the Board. The Board notes that OWCP has not administratively
combined these claims.

2

indicated that, pursuant to her doctors’ recommendations, she was unable to report to work until
her next appointment on May 27, 2020.
The employing establishment, in a May 26, 2020 letter, notified OWCP that appellant
expressed concerns over her medical limitations and refused the offer of modified assignment.
In a May 26, 2020 note, Dr. Joe W. Terry, Board-certified in family practice, noted that
appellant was on medication at night that made her drowsy and unable to drive or stay alert. He
indicated that she could only work and drive between the hours of 6:00 a.m. and 6:00 p.m.
In a May 27, 2020 medical report, Dr. Geissler indicated that appellant had been
undergoing physical therapy treatment. He conducted a physical examination and diagnosed right
rotator cuff syndrome and AC joint arthrosis. Dr. Geissler advised that appellant could return to
light-duty work with restrictions of no reaching overhead, pushing, lifting, or pulling more than
10 pounds. He also indicated that her primary doctor restricted her from working at night.
The employing establishment requested, in letters dated May 27 and 28, 2020, that OWCP
determine whether the offered position was suitable. It noted that appellant provided medical
documentation to negate the work hours identified on the offer of modified assignment and added
restriction of lifting to the physical requirement.
OWCP paid appellant wage-loss compensation on the supplemental rolls from April 29
through May 8, 2020.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 13 through June 3, 2020.
In a letter dated June 11, 2020, OWCP acknowledged receipt of appellant’s Form CA-7
and advised her that it had processed a wage-loss compensation payment for the period May 13
through 22, 2020. It also noted that the employing establishment had offered appellant a modified
temporary light-duty assignment on May 15, 2020, effective May 23, 2020, which she declined.
OWCP informed her that the duties and physical requirements of the employing establishment’s
temporary light-duty assignment were within Dr. Geissler’s April 3, 6, and May 27, 2020 work
restrictions. It also informed appellant of the provisions of 20 C.F.R. § 10.500(a) and further
advised that her entitlement to wage-loss compensation may be denied under this provision if she
did not accept the offered assignment or provide a written explanation with justification for her
refusal within 30 days. OWCP specifically requested appellant to submit evidence to support that
the assignment was no longer available or no longer accommodated her medical restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 4 through
17, 2020.
In a June 18, 2020 statement, appellant noted that she was distraught by her report time on
her modified job offer because the medication she took at night caused drowsiness and dizziness.
She contended that she signed the modified offer on May 21, 2020 and returned it to the address
given. Appellant also contended that the employing establishment notified her that, per
Dr. Geissler’s recommendation, she was not to report to work until May 28, 2020.

3

On June 19, 2020 appellant accepted the offer of modified assignment as a limited-duty
rural carrier.
In a June 26, 2020 letter, the employing establishment notified OWCP that appellant
returned to work on June 25, 2020, but on June 26, 2020 she took a muscle relaxer due to her arm
hurting and subsequently fainted while at work. It indicated that she was sent to a hospital. In a
letter of even date, Lauren W. Buffington, a nurse practitioner, verified that appellant was seen in
the emergency room that day and indicated that she could return to work with restrictions.
In a June 29, 2020 letter, Dr. Terry again noted that appellant was on medication at night
that made her drowsy and unable to drive or stay alert. He indicated that she could only work and
drive between the hours of 6:00 a.m. and 6:00 p.m. In a work status note of even date, Dr. Terry
indicated that appellant could return to full-duty work on July 7, 2020 without restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 21 through
July 14, 2020.
In a July 22, 2020 development letter, OWCP acknowledged receipt of appellant’s claim
for wage-loss compensation beginning June 21, 2020 and advised that additional evidence was
needed to establish disability from work during the claimed periods. It advised that the evidence
indicated that a temporary light-duty assignment was available within appellant’s medical
restrictions with the employing establishment for the period of claimed lost time and requested
evidence to support why she did not work the temporary light-duty assignment. OWCP afforded
appellant 30 days to submit the requested medical evidence.
In a May 27, 2020 progress report, Ms. Koerber indicated that the employing establishment
notified her that job duties within compliance of the recommended restrictions f rom Dr. Geissler
were not available for appellant at this time.
In a June 26, 2020 progress report, Ms. Koerber noted that appellant had been released to
return to limited-duty work on June 26, 2020.
In a July 20, 2020 medical report, Dr. Geissler noted appellant’s complaint that her work
duties require her to lean over pick up about 100 boxes out of bins, which aggravated and increased
her right shoulder pain. Appellant also reported that her tasks made her dizzy. Dr. Geissler noted
that in late June appellant took pain medication before passing out at work. He indicated that she
had not been back at work since her fall.
In an August 10, 2020 memorandum of telephone call (Form CA-110), OWCP notified
Ms. Koerber that appellant sustained a recurrence of disability on June 26, 2020, when she passed
out at work and reinjured her right shoulder due to the medicine she was taking.
In an August 19, 2020 Form CA-110, OWCP notified Ms. Koerber that appellant filed a
new injury claim for right shoulder injury that allegedly occurred on June 26, 2020 when she
fainted at work.
By decision dated August 19, 2020, OWCP denied appellant’s wage-loss compensation
claim for disability from work, commencing May 23, 2020, pursuant to 20 C.F.R. § 10.500(a)
based on her refusal to accept the employing establishment’s May 15, 2020 offer for a temporary
4

light-duty assignment. It explained that the evidence established that she had medical restrictions
in place, a light-duty work assignment within those restrictions was available to her, and she was
previously notified in writing that such light-duty work was available.
On September 22, 2020 appellant requested reconsideration. Along with her request, she
resubmitted copies of the January 24, 2020 hospital record, the March 27, 2020 progress report
from Ms. Koerber, and the July 20, 2020 medical report from Dr. Geissler, as well as the signed
offer of modified assignment.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber. Ms. Koerber noted that appellant continued to experience right shoulder
symptoms after the June 26, 2020 fall, when she reinjured her right shoulder. She indicated that
Dr. Geissler had recommended that appellant remain off work.
By decision dated October 7, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 10

6

Supra note 1 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law, nor did it advance a relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based o n the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 11
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. In support of her reconsideration request, appellant
submitted duplicative records, including a January 24, 2020 hospital record, March 27, 2020
progress report from the field nurse, and a July 20, 2020 medical report from Dr. Geissler, as well
as her signed offer of modified assignment. The Board has held that evidence or argument that
repeats or duplicates evidence previously of record has no evidentiary value and does not constitute
a basis for reopening a case. 12 Thus, this evidence is insufficient to warrant a merit review.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber, the field nurse. The underlying issue on reconsideration was whether she
had met her burden of proof to establish disability from work during the period claimed causally
related to her accepted work-related medical conditions. This is a medical question that requires
rationalized medical opinion evidence to resolve the issue.13 Certain healthcare providers such as
physical therapists, nurses, physician assistants, and social workers are not considered physicians
as defined under FECA. 14 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits. 15 As Ms. Koerber’s reports do not
constitute competent medical evidence, they are, therefore, irrelevant to the underlying merit issue.
The Board has held that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case. 16 Therefore, appellant is not entitled to

11

See S.G., Docket No. 21-0067 (issued August 23, 2021); K.F., Docket No. 19-1846 (issued November 3, 2020).

12

C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K.,
59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); Eugene F. Butler, 36 ECAB 393 (1984).
13

Y.L., Docket No. 20-1025 (issued November 25, 2020); M.P., Docket No. 19-1872 (issued April 15, 2020).

14

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).
15

Id.

16

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

further review of the merits of her claim based on the third above -noted requirement under
20 C.F.R. § 10.606(b)(3).17
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).19
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

18
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).
19
The Board notes that the employing establishment executed 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);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LEBANON VETERANS MEDICAL CENTER,
Lebanon, PA, Employer
__________________________________________

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

Docket No. 10-1052
Issued: December 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from the February 17, 2010 Office of
Workers’ Compensation Programs merit decision which denied her request for surgery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this issue.
ISSUE
The issue is whether the Office properly denied authorization for left carpal tunnel
surgery and wrist arthroscopy.
FACTUAL HISTORY
On August 14, 2009 appellant, then a 43-year-old practical nurse, filed a traumatic injury
claim alleging that on August 13, 2009 she sustained a minor left wrist injury when a patient
grabbed her wrist while she was attempting to administer medication. The Office accepted her
claim for left wrist sprain. Appellant did not stop work.

Appellant was treated at an employing establishment medical center from August 13 to
19, 2009, for left wrist pain which occurred after the altercation with a patient. She was initially
treated by Dr. Bruce J. Hinkle, Board-certified in emergency medicine, who noted examination
findings of no tenderness in the elbow, wrist, hand or snuffbox, mild tenderness in the distal
radius with no swelling and full range of motion. Dr. Hinkle diagnosed left wrist sprain,
prescribed a splint and returned appellant to work full duty. On August 14, 2009 appellant was
treated by Dr. Shubha R. Acharya, a Board-certified internist, for left wrist pain. Dr. Acharya
diagnosed resolving left wrist strain and intermittent paresthesias of the left hand. He returned
appellant to work full duty. Similarly, on August 19, 2009 appellant was treated by a physician’s
assistant for resolving left wrist strain and intermittent paresthesias of the left hand. A
November 12, 2009 electromyogram (EMG) revealed evidence of left median entrapment
neuropathy at the wrist consistent with carpal tunnel syndrome.
Appellant came under the treatment of Dr. David G. Kuntz, Jr., a Board-certified
orthopedist, from November 6, 2009 to February 4, 2010, for a left wrist injury which occurred
at work on August 13, 2009. She reported persistent pain and numbness in the thumb, third and
fourth digits. On November 20, 2009 Dr. Kuntz diagnosed mild left carpal tunnels syndrome
pursuant to an EMG, left wrist pain and probable tenosynovitis and recommended continued
conservative treatment including splinting and physical therapy. On December 18, 2009 he
advised that appellant continued to have left wrist pain despite injections, therapy and bracing.
Dr. Kuntz opined that he did not see any surgical indication and recommended a short-arm cast.
On January 22, 2010 he noted appellant’s persistent symptoms of left wrist pain, numbness and
tingling despite being casted. Dr. Kuntz diagnosed diffuse left wrist pain and left carpal tunnel
syndrome and recommended a magnetic resonance imaging (MRI) scan. On February 4, 2010
he noted appellant’s continued symptoms of persistent left wrist pain, left carpal tunnel
syndrome. Dr. Kuntz noted tenderness over the dorsum of the left wrist and snuffbox, positive
Tinel’s and Phalen’s signs over the carpal tunnel, weak grip strength on the left with decreased
left flexion. He opined that conservative treatment failed including bracing, injections, activity
modifications, immobilization and medication. Dr. Kuntz recommended surgical intervention,
left carpal tunnel release and left wrist arthroscopy with debridement and advised that appellant
may have a ligament tear. Appellant submitted physical therapy notes from November 20 to
December 16, 2009.
In a decision dated February 17, 2010, the Office denied the request for surgery on the
grounds that the proposed surgery was neither warranted nor causally related to appellant’s
accepted work-related injury of August 13, 2009.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act1 provides that 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, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in

1

5 U.S.C. §§ 8101-8193.

2

lessening the amount of monthly compensation.2 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
section 8103, with the only limitation on the Office’s authority being that of reasonableness.3
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 deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.4 In order to be entitled to reimbursement for
medical expenses, a claimant must establish that the expenditures were incurred for treatment of
the effects of an employment-related injury.5
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence
to show that the requested procedure is for a condition causally related to the employment injury
and that it is medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.6
ANALYSIS
The Office accepted that appellant sustained an employment-related left wrist sprain.
Appellant did not stop work. On February 9, 2010 Dr. Kuntz requested that the Office authorize
left carpal tunnel surgery and wrist arthroscopy. The Board finds that the Office did not abuse its
discretion in denying appellant’s request for left carpal tunnel surgery and wrist arthroscopy for
her wrist condition.
Appellant was treated by Dr. Kuntz from November 6 to December 18, 2009, who
diagnosed mild left carpal tunnel syndrome pursuant to an EMG and probable tenosynovitis.
Similarly, on January 22, 2010 Dr. Kuntz noted appellant’s complaints of left wrist pain,
numbness and tingling and diagnosed diffuse left wrist pain and left carpal tunnel syndrome.
However, the Board notes that appellant’s claim was not accepted for left carpal tunnel
syndrome and tenosynovitis. None of Dr. Kuntz’s reports explained the causal connection
between the carpal tunnel syndrome and tenosynovitis and the original left wrist sprain of
August 13, 2009.7
In a report dated February 4, 2010, Dr. Kuntz diagnosed persistent left wrist pain, carpal
tunnel syndrome and opined that appellant failed all conservative treatment including bracing,
injections, activity modifications, immobilization and medication. He recommended surgical
2

Id. at § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

3

James R. Bell, 52 ECAB 414 (2001).

4

Claudia L. Yantis, 48 ECAB 495 (1997).

5

Cathy B. Mullin, 51 ECAB 331 (2000).

6

Id.

7

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

intervention, left carpal tunnel release and left wrist arthroscopy with debridement. Dr. Kuntz
explained that appellant needed the surgery because conservative treatment had failed. However,
his report failed to provide a rationalized opinion regarding the causal relationship of the
proposed carpal tunnel syndrome and left wrist arthroscopy to the employment injury. The
Office never accepted that appellant developed carpal tunnel syndrome as a result of her
August 13, 2009 work injury and the medical opinion evidence of record is not sufficient to
establish that the procedure in question is necessary for treatment of appellant’s accepted work
injury of left wrist sprain.
Other medical records submitted most contemporaneous with the date of the alleged
injury, specifically employing establishment records from August 13 to 19, 2009 diagnosed left
wrist sprain and returned appellant to work full duty. Similarly, on August 14, 2009 Dr. Acharya
treated appellant for left wrist pain with intermittent paresthesias and diagnosed resolving left
wrist strain and intermittent paresthesias of the left hand. However, none of the physicians
diagnosed carpal tunnel syndrome nor did they recommend surgical intervention, rather, they
suggest that appellant’s accepted left wrist sprain was resolving. A November 12, 2009 EMG
report did not provide an opinion on the causal relationship between appellant’s job and his
diagnosed carpal tunnel syndrome.
Appellant also submitted records from a physician’s assistant as well as physical therapy
notes, however; the Board has held that treatment notes signed by a physician’s assistant and
physical therapist are not considered medical evidence as these providers are not physicians
under the Act.8
In order for a surgical procedure to be authorized, a claimant must show that the surgery
is medically warranted and is for a condition causally related to an employment injury.9 Because
appellant did not submit a reasoned medical opinion explaining that the left carpal tunnel surgery
and wrist arthroscopic surgery was caused by employment factors, the Office properly acted
within its discretionary authority to deny authorization for the requested surgery. Therefore, the
Board finds that the Office did not abuse its discretion under section 8103 in denying approval of
left carpal tunnel surgery and wrist arthroscopic surgery.
On appeal appellant asserts that her surgery request should be granted because she has
unexplained pain and numbness in her left wrist caused by the work injury of August 13, 2009.
As noted above, in order for a surgery to be authorized, she must submit evidence to show that
the requested procedure is for a condition causally related to the employment injury and that it is
medically warranted. In this instance, as noted above, appellant has not submitted sufficient

8

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the Act); 5 U.S.C. § 8101(2) (this subsection defines
a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
9

5 U.S.C. § 8103; see also R.C., 58 ECAB 238 (2006) (where the Board found that for a surgery to be authorized,
a claimant must submit evidence to show that the requested procedure is for a condition causally related to the
employment injury and that it is medically warranted).

4

evidence to support that the recommended surgery was causally related to her employment injury
of August 13, 2009.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for authorization of left
carpal tunnel surgery and wrist arthroscopic surgery.10
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

After the Office issued the February 17, 2010 decision, appellant submitted additional medical evidence.
However, the Board may not consider new evidence on appeal; see 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 09-411
Issued: August 6, 2009

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 November 26, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated July 24 and October 10, 2008. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than five percent permanent impairment
to her left lower extremity; and (2) whether the Office properly refused to reopen appellant’s case
for reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 31-year-old mail clerk, injured her left knee on March 5, 2007 when she
struck her leg under her desk. She filed a claim for benefits, which the Office accepted for

contusion of the left knee. The claim was subsequently expanded to include the conditions of
patella tendinitis of the left knee and chondromalacia of the left patella.1
In a November 9, 2007 report, Dr. Seth Gasser, Board-certified in orthopedic surgery and
appellant’s treating physician, noted that appellant complained of “unbearable” pain in her left
knee which was aggravated by squatting, climbing stairs and prolonged sitting. He noted that
she had positive mild discomfort in the medial portion of her left patellar tendon and significant
pain in the medial facet of the patella. Dr. Gasser stated that appellant was at postsurgery status
for anterior cruciate ligament reconstructive surgery and diagnosed left patellar tendinitis,
chondromalacia patella Grade 1 on the left. In a form report dated November 9, 2008, he
indicated that she had three percent whole person impairment and stated that she reached
maximum medical improvement on November 9, 2007.
On January 8, 2008 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left leg.
In order to determine the degree of permanent impairment appellant may have sustained
from her accepted left knee condition, the Office referred appellant for a second opinion
examination with Dr. William Dinenberg, a Board-certified orthopedic surgeon. In a report
dated May 15, 2008, Dr. Dinenberg stated that appellant had five percent impairment of the
whole person under Table 13-15 at page 336 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th edition) (A.M.A., Guides).
In a report dated July 9, 2008, an Office medical adviser found that appellant had five
percent impairment of her left lower extremity based on the A.M.A., Guides. He rejected
Dr. Dinenberg’s opinion of five percent whole person impairment based on appellant’s history of
chondromalacia and contusion. The Office medical adviser rated five percent impairment for
arthritis, citing the footnote at Table 17-31, page 544 of the A.M.A., Guides, which states:
“In an individual with a history of direct trauma, a complaint of patellofemoral
pain, and crepitation on physical examination, but without joint space narrowing
on x-rays, a two percent whole person or five percent lower extremity impairment
is given.”
On July 24, 2008 the Office granted appellant a schedule award for five percent
permanent impairment of the left lower extremity for the period May 15 to August 23, 2008, for
a total of 4.4 weeks of compensation.
By letter dated September 15, 2008, appellant’s attorney requested reconsideration.
Appellant submitted results of diagnostic tests dated July 10 and 11, 2008 which reiterated the
diagnosis of moderate chondromalacia of the left patella and noted that she had underwent
surgery to repair her left anterior cruciate ligament.
1

In a statement of accepted facts dated April 22, 2008, the Office noted that appellant sustained a network-related
contusion of the left knee in May 2006 and underwent reconstructive surgery to repair her anterior cruciate ligament
on September 12, 2006. It indicated that, prior to the March 5, 2007 work injury, appellant was working light duty
while recovering from her reconstructive left knee surgery.

2

By decision dated October 10, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.3 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (5th edition) as the standard to be used for evaluating schedule
losses.4 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.5
ANALYSIS -- ISSUE 1
In this case, the Office medical adviser determined that appellant had five percent
impairment of the left lower extremity by deriving five percent impairment from arthritis,
pursuant to Table 17-31, page 544 of the A.M.A., Guides. He cited the footnote to Table 17-31
at page 544 which apportioned five percent lower extremity impairment to an individual with a
history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical
examination, but without joint space narrowing on x-rays. The Board finds that the Office
medical adviser properly determined that these findings applied to appellant’s condition and that
appellant was entitled to five percent impairment for the left lower extremity.
Appellant asserts that she has consulted physicians whose reports support a greater
impairment rating of the left lower extremity. No other reports, however, have been received by
the Office. Appellant has not submitted any medical evidence which establishes that she is
entitled to an additional schedule award.
As there is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment, the Office properly found that appellant was not entitled to
more than a five percent permanent impairment to her left lower extremity.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

Id. at § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

3

advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.6 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.7
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument not previously
considered by the Office; and she has not submitted relevant and pertinent evidence not
previously considered by the Office. The evidence she submitted is not pertinent to the issue on
appeal. The July 10 and 11, 2008 diagnostic reports contain findings of chondromalacia of the
left patella and noted that she had underwent surgery to ameliorate a torn anterior cruciate
ligament. These reports did not address the relevant issue of whether appellant is entitled to a
schedule award for greater impairment than the five percent impairment already awarded. The
Board has held that the submission of evidence which does not address the particular issue
involved in the case does not constitute a basis for reopening the claim.8 Appellant’s
reconsideration request failed to show that the Office erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by the Office. The
Office did not abuse its discretion in refusing to reopen appellant’s claim for a review on the
merits.
CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment to
her left lower extremity. The Office properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

7

Howard A. Williams, 45 ECAB 853 (1994).

8

See David J. McDonald, 50 ECAB 185 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the October 10 and July 24, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: August 6, 2009
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


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, PADUCAH
PROCESSING & DISTRIBUTION FACILITY,
Paducah, KY, Employer
_________________________________________

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Docket No. 13-97
Issued: April 25, 2013

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

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2012 appellant, through her attorney, filed a timely appeal from the
September 24, 2012 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.
ISSUES
The issues on appeal are: (1) whether OWCP properly terminated appellant’s wage-loss
compensation effective August 17, 2011; and (2) whether appellant’s claim should be expanded
to include the condition of lateral epicondylitis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In an April 20, 2010
decision, the Board found that the case was not in posture for decision regarding whether
appellant established that she sustained an injury in the performance of duty. The Board found
that the evidence established that she had de Quervain’s syndrome in the left hand and that she
engaged in repetitive activities at work using her hands. The Board also found that there was no
dispute concerning the duties she performed as a casual employee, which involved lifting and
hand movement throughout each workday, including loading and sweeping mail. The Board
remanded the case for further medical development. The facts and history contained in the prior
appeal are incorporated by reference.
In a July 15, 2010 report, Dr. James M. Donley, a Board-certified orthopedic surgeon and
OWCP referral physician, diagnosed left de Quervain’s disease and opined that it could be
related to appellant’s work. On August 5, 2010 OWCP accepted her claim for left de Quervain’s
syndrome. An authorized left wrist de Quervain’s release was performed on September 3, 2010
by Dr. Daniel M. Tkach, a treating Board-certified surgeon. Appellant received compensation
benefits.
In a January 27, 2011 report, Dr. Tkach noted that appellant returned for follow up as she
still had pain in her left forearm. He advised that it seemed to involve mostly the proximal
forearm but radiated up her arm and down towards her wrist. Dr. Tkach related that appellant
reported that some of the pain in her left wrist had resolved but she still had trouble working due
to pain in her forearm. He examined appellant and determined that there was no tenderness at
the wrist, her Finkelstein test was negative and sensory function to the finger tips was intact.
Dr. Tkach indicated that she had tenderness at the proximal lateral aspect of the left forearm just
distal to the lateral humeral epicondyle, increased tenderness with resisted pressure on the middle
finger and some with resisted pressure at the index finger. He indicated that there was no
numbness of the forearm. Dr. Tkach opined that it appeared that appellant “probably has a
lateral humeral epicondylitis (tennis elbow). A compression of the radial nerve proximally in the
forearm is also a probability, though it is difficult at this juncture to distinguish between two
problems. In either case, the focus of the problem can be fairly well localized with one finger
tip, suggesting that steroid injections into this one are just distal to the lateral humeral epicondyle
may give her some relief from the inflammatory problem in that area.”
In a February 10, 2011 work capacity evaluation, Dr. Tkach indicated that appellant
reached maximum medical improvement. He indicated that she did not have any restrictions
from de Quervain’s syndrome. However, Dr. Tkach indicated that appellant had symptoms of
lateral humeral epicondylitis.
On July 11, 2011 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s compensation benefits on the basis that medical evidence, as
represented by the report of Dr. Tkach, established that her accepted left de Quervain’s syndrome

2

Docket No. 09-1474 (issued April 20, 2010).

2

had resolved. Appellant was given 30 days to submit additional evidence. No additional
evidence was received.
By decision dated August 16, 2011, OWCP terminated appellant’s wage-loss
compensation effective August 17, 2011.
In a report dated August 29, 2011, Dr. Tkach noted that he and appellant discussed her
concerns regarding her claim. Appellant related to Dr. Tkach that she continued with complaints
of pain in her upper extremity which radiated throughout her arm. Dr. Tkach noted that she was
“very upset that I had reported that the de Quervain’s syndrome was resolved and that [appellant]
could return to work because she still has pain of her arm.” Appellant denied that she ever got
any improvement but when she described her pain it was focused toward the proximal forearm
and she wore a tennis elbow brace on her forearm. Dr. Tkach explained that she had two
problems; de Quervain’s syndrome “which has been treated and resolved as demonstrated by a
negative Finkelstein test”; and “the tennis elbow problem” which was “a separate issue which
may or may not have been brought about as a result of [appellant’s] injury at work. I could not
give her a definite answer as to whether it was caused by her work but I pointed out that
repetitive wrist and elbow motions are the overall cause of tennis elbow syndrome.” He noted
that appellant had a problem with lateral humeral epicondylitis and recommended steroid
injections. Dr. Tkach opined that he could not say with confidence that an acute injury brought
about the tennis elbow problem. He noted that the injury that appellant described” might be a
contributing or inciting factor.” Dr. Tkach advised that she “remained quite upset because she
has been under the impression that no one believes that she is in pain.” He indicated that, while
appellant was having pain and discomfort at her elbow, he would like to begin the treatment of
steroid injections.
Appellant’s representative requested a telephonic hearing, which was held on
December 7, 2011. During the hearing, appellant indicated that she had severe pain from the
middle of her left arm, close to her hand and up to her shoulder, neck and heart. She indicated
that the pain was constant. Appellant noted that she had not engaged in any employment since
her termination in June 2008. She also indicated that the pain occurred after she underwent
surgery for her de Quervain’s syndrome. Appellant explained that she did not have the pain
before the surgery.3
By decision dated February 15, 2012, an OWCP hearing representative affirmed the
August 16, 2011 decision finding that OWCP met its burden of proof to terminate compensation
benefits.
By letter dated July 20, 2012, appellant’s representative requested reconsideration and
submitted additional evidence. In a January 18, 2012 report, Dr. Tkach indicated that he was
clarifying his previous correspondence. He noted that he initially saw appellant on June 23,
2008 for complaints of left thumb pain, which she had intermittently for several years.
Dr. Tkach advised that he diagnosed left de Quervain’s syndrome because she had a positive
3

On December 12, 2011 appellant filed a new occupational disease claim for left arm pain. She indicated that
she was having left arm and hand pain related to rotating her hands, heavy lifting with the left arm and repetitive
work. Appellant stated that she had left upper arm pain after she had wrist surgery.

3

Finkelstein test and left wrist tenderness. He noted appellant’s September 3, 2010 left wrist
surgery and noted that, despite relief of her left thumb symptoms, she reported pain that radiated
up into her forearm and that some of this pain radiated up into her left anterior chest. Dr. Tkach
explained that, because those symptoms were closely related in time after surgery, it was
believed that she had some pain radiating from the surgery area and splinting of the muscles
proximally. He advised that appellant’s symptoms gradually abated but she still complained of
pain radiating into her left proximal forearm as well as down toward the wrist. Dr. Tkach
determined that she had left lateral humeral epicondylitis (tennis elbow). He noted that appellant
complained of both sides having similar symptoms and his physical examination revealed
tenderness over the lateral humeral epicondyle on both sides. Dr. Tkach indicated that he wanted
her to fully recover from her de Quervain’s syndrome before going any further with the tennis
elbow diagnosis.
Dr. Tkach explained that appellant recovered from her de Quervain’s surgery but was
unwilling to return to work because she still had pain in her proximal forearms. He
recommended steroid injections for the tennis elbows but noted that those treatments were not
authorized because appellant had recovered from her de Quervain’s syndrome. Dr. Tkach
explained that the lateral humeral epicondylitis is a different entity that may or may not have
been present at the time of her initial presentation. He indicated that it was difficult to assess
when there were multiple areas of pain. Dr. Tkach advised that lateral humeral epicondylitis was
a result of repetitive stress that could be found in most manual labor jobs requiring gripping wrist
and elbow motions, which could have occurred as a result of appellant’s work, but could also
occur from any other repetitive stress type activity whether on the job or not. He indicated that
there were no objective tests other than physical examination to make the diagnosis of lateral
humeral epicondylitis. Dr. Tkach opined that it was “probably masked by the de Quervain’s
problem. The lateral humeral epicondylitis still exists even after the surgery because the surgery
was to treat the de Quervain’s syndrome, which [appellant] certainly had and that operation does
not address lateral humeral epicondylitis.”
By decision dated September 24, 2012, OWCP denied modification of the prior decision.
It also found that the evidence was insufficient to establish that a left elbow condition was
causally related to work factors.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that, an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5

4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

4

ANALYSIS -- ISSUE 1
The Board finds that the weight of the medical evidence at the time of OWCP’s
August 16, 2011 termination decision was represented by appellant’s treating physician,
Dr. Tkach, a Board-certified orthopedic surgeon, who submitted a well-rationalized opinion
based upon a complete and accurate factual and medical history finding that appellant’s accepted
left de Quervain’s syndrome had resolved.
In his January 27, 2011 report, Dr. Tkach noted that appellant returned for follow up as
she still had pain in her left forearm. He examined her and determined that there was no
tenderness at the wrist, her Finkelstein test was negative and sensory function to the finger tips
was intact. Dr. Tkach indicated that appellant had tenderness at the proximal lateral aspect of the
left forearm just distal to the lateral humeral epicondyle, increased tenderness with resisted
pressure on the middle finger and some with resisted pressure at the index finger. He indicated
that there was no numbness of the forearm. Dr. Tkach opined that it appeared that appellant
“probably has a lateral humeral epicondylitis (tennis elbow).” He explained that she probably
had a compression of the radial nerve proximally in the forearm, but advised that it was difficult
at this juncture to distinguish between the two problems. Dr. Tkach provided a work capacity
evaluation on February 10, 2011 and opined that appellant had reached “maximum medical
improvement.” He indicated that she did not have any restrictions from de Quervain’s
syndrome. Although Dr. Tkach indicated that appellant had symptoms of lateral humeral
epicondylitis, the Board notes that this was not an accepted condition.
Although appellant submitted additional reports from Dr. Tkach after her benefits were
terminated, these reports continued to indicate that the accepted de Quervain’s syndrome had
resolved. Therefore, those reports are insufficient to establish any continuing disability or
residuals of the left de Quervain’s syndrome.6
In these circumstances, OWCP properly accorded the medical weight of the medical
evidence to Dr. Tkach’s January 27 and February 10, 2011 findings. Thus, the Board finds that
Dr. Tkach’s reports established that appellant ceased to have any disability causally related to the
accepted employment, thereby justifying OWCP’s August 17, 2011 decision which terminated
appellant’s medical and wage-loss compensation.
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that he or she sustained 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 occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee

6

See Joseph A. Brown, Jr., 55 ECAB 542 (2004) (after termination or modification of compensation benefits,
clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to the
claimant).

5

claims compensation, is causally related to the accepted injury.7 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.8 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.9
Neither the 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.10
ANALYSIS -- ISSUE 2
OWCP denied appellant’s request to expand her claim to include the condition of lateral
epicondylitis. The issue is whether appellant has met the burden of proof to establish that her
diagnosed conditions are causally related to her accepted injury. The Board finds that she has
not met her burden of proof.
In support of her request to expand her claim appellant included reports from Dr. Tkach,
who noted that, while her de Quervain’s syndrome had resolved, she had lateral epicondylitis. In
his January 18, 2012 report, Dr. Tkach clarified his treatment of her and explained the basis of
his left de Quervain’s syndrome diagnosis and her recovery from the September 3, 2010 surgery.
He advised that she reported pains radiating up her forearm and continuing and that some of
these pains radiated all the way up into her left anterior chest. Dr. Tkach explained that because
those symptoms were closely related in time after surgery, it was believed that appellant was
having some pain radiating from the area from surgery and splinting of the muscles proximally.
Dr. Tkach indicated that her symptoms gradually abated but she still complained of pain
radiating into her left proximal forearm. He diagnosed left lateral humeral epicondylitis.
Dr. Tkach advised that his examination revealed tenderness over the lateral humeral epicondyle
on both sides. He explained that the lateral humeral epicondylitis may or may not have been
present when he first treated appellant but it was difficult to assess due to multiple areas of pain.
Dr. Tkach stated that lateral humeral epicondylitis resulted from repetitive stress that could be
found in most manual labor jobs requiring gripping wrist and elbow motions, which could have
occurred as a result of her work, but could “also occur from any other repetitive stress type
activity whether on the job or not.” He opined that it was “probably masked by the de
Quervain’s problem.” The Board notes that Dr. Tkach has not given a definitive opinion with
regard to the cause of the lateral epicondylitis as he couched his opinion in equivocal terms. The
Board has held that speculative and equivocal medical opinions regarding causal relationship

7

See Leon Thomas, 52 ECAB 202 (2001).

8

See Gary J. Watling, 52 ECAB 278 (2001).

9

Albert C. Brown, 52 ECAB 152 (2000).

10

Ernest St. Pierre, 51 ECAB 623 (2000).

6

have no probative value.11 Dr. Tkach did not explain the process by which particular work
activities caused or aggravated bilateral lateral epicondylitis. The need for such an explanation is
particularly important as appellant has not worked at the employing establishment since
June 10, 2008.
The Board finds that appellant has not met her burden of proof to establish that she had
any additional conditions causally related to her accepted work injury. Therefore, OWCP
properly denied her request to expand her claim.
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s
compensation benefits effective August 17, 2011. The Board also finds that she has not met her
burden of proof.

11

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal; the opinion should be
expressed in terms of a reasonable degree of medical certainty).

7

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. DISTRICT COURT, SOUTHERN
DISTRICT OF FLORIDA, Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0071
Issued: May 13, 2019

Case Submitted on the Record

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

JURISDICTION
On October 11, 2017 appellant, through counsel, filed a timely appeal from an April 28,
2017 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish left shoulder and
neck conditions causally related to the accepted November 5, 2015 employment incident.

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.

FACTUAL HISTORY
On December 8, 2015 appellant, then a 60-year-old executive services administrator, filed
a traumatic injury claim (Form CA-1) alleging that, on November 5, 2015, she injured her left
shoulder and neck as a result of pushing and pulling carts from an elevator to a lobby and turning
over white plastic folding chairs while in the performance of duty. She did not stop work.
In a diagnostic report dated November 27, 2015, Dr. Alan Holz, a Board-certified
diagnostic radiologist, examined the results of a magnetic resonance imaging (MRI) scan of
appellant’s cervical spine. He observed degenerative changes throughout the cervical spine, a
slight flattening to the cord at C4-5 without myelomalacia, and a slight prominence to the central
canal possibly reflecting a presyrinx state at C7-T1, but with no appreciable compression to the
C8 nerve roots.
On December 31, 2015 Dr. Ivan Stoev, a Board-certified neurosurgeon, examined
appellant and diagnosed spinal stenosis due to degenerative disc disease at C4-5, C5-6, and C6-7,
and a disc herniation in the upper thoracic area at T4-5 without compression of the spinal cord.
He noted that she had neck pain radiating to her left shoulder since November 2015. Dr. Stoev
recommended that appellant undergo an anterior cervical discectomy and fusion from C4-7 with
titanium plates and screws. He reported that appellant’s medical history included back surgery,
orthopedic surgery of the shoulder, and a laminectomy.
In a development letter dated January 7, 2016, OWCP informed appellant that she had not
submitted sufficient factual or medical evidence to establish her claim. It advised her of the type
of factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded her 30 days to respond.
Appellant submitted medical reports relating to her prior medical treatment including a
December 30, 2009 report by Dr. Michael Ruddy, a Board-certified orthopedic surgeon, who noted
that a lumbar spine MRI scan had been conducted on December 18, 2009, finding a bulge, a left
foraminal herniation, nerve root encroachment, and an annular tear at L5-S1. Also submitted was
an October 11, 2010 report in which Dr. Ruddy noted that appellant was symptomatic in her left
shoulder and hip.
In a diagnostic report dated July 14, 2011, Dr. Samuel Sered, a Board-certified diagnostic
radiologist, examined a left shoulder MRI scan and diagnosed: moderate-to-severe supraspinatus
tendinopathy with an associated intrasubstance tear and an intramuscular ganglion cyst along the
supraspinatus myotendinous junction; minimal infraspinatus tendinopathy with a mild edema
about the infraspinatus myotendinous junction; and mild acromioclavicular osteoarthritis.
In an operative note dated July 14, 2011, Dr. Ruddy performed a left shoulder operative
arthroscopy with subacromial decompression including a busectomy, release of the
coracoacromial ligament and a partial anterior/anterolateral acromioplasty. He noted that this
procedure was due to chronic pain in her left shoulder. The surgery was completed without
complications.

2

In a report dated November 9, 2015, Dr. Ruddy examined appellant and diagnosed cervical
spondylosis, bilateral shoulder impingement syndrome, and left upper extremity ulnar neuropathy.
He noted complaints of neck pain, bilateral shoulder pain.
On December 2, 2015 Dr. Ruddy reviewed the results of a November 27, 2015 MRI scan
and diagnosed spinal cord pressure at C4-5 and C5-6 related to degenerative spur formation.
By letter dated January 26, 2016, appellant responded to OWCP’s inquiries. She noted
that, on the date of injury, she did not recognize its severity and she thought that the pain would
subside in a few days. Appellant noted that she felt immediate effects of pain in her left shoulder
along with slight pain in the left side of her neck and right shoulder. She stated that she did not
sustain other injury between the date of injury and the dates she reported it to her supervisor and
physician. Appellant responded that she did not have similar disability or symptoms before
November 5, 2015, although she had left shoulder surgery on April 21, 2011 due to a fall and a
prior laminectomy at L5-S1.
By decision dated February 12, 2016, OWCP denied appellant’s claim, finding that she
had not submitted sufficient evidence to establish causal relationship between her diagnosed
conditions and the accepted November 5, 2015 employment incident. On February 7, 2017
appellant, through counsel, requested reconsideration and submitted a medical report, which
counsel asserted established causal relationship. Counsel further contended that aggravation of a
preexisting condition was compensable, regardless of the degree of aggravation and thus requested
that the decision of February 12, 2016 be reversed and that appellant’s claim be accepted for
aggravation of cervical spondylosis.
In a report dated October 4, 2016, Dr. Jackson Cohen, Board-certified in physical medicine
and rehabilitation, examined appellant and diagnosed complex regional pain syndrome of the right
upper limb. He noted that she had a history of anterior cervical discectomy and fusion and a left
posterior cervical foraminotomy at C5-6 and C6-7, and was being examined for follow-up after a
right stellate ganglion block failed to provide relief for her right upper extremity.
In a November 4, 2016 report, Dr. Cohen diagnosed the additional condition of right
cervical paraspinal muscle spasm and noted her right cervical paraspinal pain.
On November 10, 2016 Dr. Cohen performed a right cervical paraspinal trigger point
injection. The procedure was completed without complications. On November 21, 2016 appellant
returned for a follow-up, noting that the procedure had not provided significant pain relief for her
neck pain, and that her right upper extremity remained very sensitive to touch.
On April 4, 2016 Dr. Susanne Gonzalez Gallardo, a Board-certified neurologist, noted
appellant’s chronic cervical pain status following her anterior cervical discectomy and fusion.
Appellant reported a burning sensation over the lateral aspect of her shoulder to the midpoint
between elbow and shoulder.
On April 22, 2016 appellant underwent a left posterior/cervical foraminectomy at C5-6 and
C6-7. The surgery completed without complications. On the same date, appellant also underwent
an anterior cervical discectomy and fusion from C5-7 with use of titanium plates and screws. This
surgery also completed without complications.

3

In a report dated August 17, 2016, Dr. Ruddy noted that appellant had asked whether her
condition was compensable based on her pushing and pulling carts at work. He noted that counsel
would forward him a letter before a decision could be made, because he needed to review her entire
chart to determine whether her reflex sympathetic dystrophy was related to an injury at work.
On June 24, 2016 Dr. Gallardo conducted a nerve conduction velocity study on appellant’s
left and right upper extremities. For the left side, he observed electrophysiological evidence of a
moderate chronic cervical radiculopathy at C5, as well as a mild-to-moderate median
mononeuropathy.
In a February 16, 2017 letter, Dr. Ruddy noted that appellant was asymptomatic and had
been working regular duty prior to November 5, 2015. However, after the activities of
November 5, 2015, she became symptomatic related to the activities of pushing and pulling carts
and supplies over a carpet, pushing and pulling carts from an elevator to a lobby across another
carpeted floor, and performance of repetitive activities involving the upper extremities, including
placing chairs into an upright position. Dr. Ruddy noted, “These activities would increase the
stresses and strains across the cervical spine by increasing loads across the spine and particularly
the cervical disc that would put pressure on the spinal cord creating symptomology.”
By decision dated April 28, 2017, OWCP declined to modify the decision dated
February 12, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,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
To determine whether a federal employee has sustained a traumatic injury in the performance of
duty it must first be determined whether fact of injury has been established.6 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.7 Second, the employee must submit

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

4

sufficient evidence to establish that the employment incident caused a personal injury.8 Causal
relationship is a medical issue and the medical evidence required to establish causal relationship
is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is medical
evidence which includes a physician’s rationalized opinion on whether there is causal relationship
between the employee’s diagnosed condition and the accepted employment incident.10 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 incident identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left shoulder
and neck conditions causally related to the accepted November 5, 2015 employment incident.
Appellant submitted a series reports from her physicians, including Drs. Stoev, Holze,
Ruddy, and Sered detailing her prior shoulder surgeries, degenerative conditions, and other
preexisting conditions which did not contain a statement of causal relationship between her
diagnosed conditions and documented dates prior to the accepted employment incident of
November 5, 2015. The Board has held that medical evidence which predates the date of a
traumatic injury has no probative value on the issue of causal relationship of a current medical
condition.12
In a report dated November 9, 2015, Dr. Ruddy examined appellant and diagnosed cervical
spondylosis, bilateral shoulder impingement syndrome, and left upper extremity ulnar neuropathy.
He noted neck pain, right shoulder pain, and left shoulder pain. Dr. Ruddy observed degenerative
changes throughout the cervical spine, a slight flattening to the cord at C4-5 without myelomalacia,
and a slight prominence to the central canal possibly reflecting a presyrinx state at C7-T1, but with
no appreciable compression to the C8 nerve roots. On December 2, 2015 Dr. Ruddy explained the
results of the November 27, 2015 MRI scan and diagnosed spinal cord pressure at C4-5 and C5-6
related to degenerative spur formation. On December 31, 2015 Dr. Stoev examined appellant and
diagnosed stenosis due to degenerative disc disease at C4-5, C5-6, and C6-7; and a disc herniation
in the upper thoracic area at T4-5 without compression of the spinal cord. In a report dated
October 4, 2016, Dr. Cohen examined appellant and diagnosed complex regional pain syndrome
of the right upper limb. He noted that she had a history of anterior cervical discectomy and fusion
and a left posterior cervical foraminotomy at C5-6 and C6-7, and visited that day for a follow-up
post a right stellate ganglion block on October 10, 2016, which did not provide relief for her right
upper extremity. The Board has held that a medical report is of limited probative value regarding
8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

11

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

12

V.N., Docket No. 16-1427 (issued December 13, 2016).

5

causal relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.13 As none of these medical reports provide
medical rationale as to the cause of appellant’s diagnosed conditions they are insufficient to
establish her claim.
In support of his claim appellant submitted additional medical and surgical reports. In
reports dated November 4, 10, and 21, 2016, Dr. Cohen noted his treatment of appellant and noted
her diagnosed conditions. In an April 4, 2016 report, Dr. Gallardo noted appellant’s ongoing
complaints and he documented her April 22, 2016 left posterior/cervical foraminectomy at C5-6
and C6-7 and anterior cervical discectomy and fusion from C5-7 with use of titanium plates and
screws. He noted that the surgeries were completed without complications. The Board finds that
these medical reports also do not provide medical rationale as to the cause of appellant’s diagnosed
conditions and thus they are insufficient to establish her claim.
In medical reports dated February 16 and August 17, 2016, Dr. Ruddy provided medical
reports which noted that appellant was asymptomatic and working regular duties prior to
November 5, 2015, but after that date she became symptomatic related to the activities of pushing
and pulling carts and supplies over a carpet, pushing and pulling carts from an elevator to a lobby
across another carpeted floor, and performance of repetitive activities involving the upper
extremities, including placing chairs into an upright position. He opined that these activities would
increase the stresses and strains across the cervical spine by increasing loads across the spine and
particularly the cervical disc that would put pressure on the spinal cord creating symptomology.
The Board has held that 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 a causal relationship.14 Without a wellrationalized differentiation of the symptoms of appellant’s preexisting degenerative conditions
from any possible symptoms of aggravation resulting from the incident of November 5, 2015,
Dr. Ruddy’s opinion is insufficient to establish appellant’s claim.15
Finally, appellant has submitted diagnostic testing reports in support of her claim. The
Board has explained that diagnostic studies lack probative value as they do not address whether
the employment incident caused any of the diagnosed conditions.16 These reports are therefore
also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence to support her allegation that
she sustained an injury causally related to the incident of November 5, 2015, the Board finds that
she has not met her burden of proof to establish a claim.
On appeal counsel argues that appellant has submitted sufficient evidence to establish a
causal relationship between her diagnosed conditions and the November 5, 2015 employment

13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

Supra note 9.

15

Id.

16

See J.S., Docket No. 17-1039 (issued October 6, 2017).

6

incident. For the reasons set forth above, appellant has not met his burden of proof to establish his
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 meet her burden of proof to establish an injury
causally related to the accepted November 5, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 13, 2019
Washington, DC

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

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

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

7