United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-632
Issued: June 9, 2015

Case Submitted on the Record

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

JURISDICTION
On January 26, 2015 appellant filed a timely appeal from a December 10, 2014 merit
decision of the Office of Workers’ Compensation Programs. 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 met his burden of proof to establish that he sustained an
upper respiratory injury in the performance of duty on May 28, 2013.
FACTUAL HISTORY
On May 29, 2014 appellant, then a 53-year-old heavy mobile equipment mechanic, filed
a traumatic injury claim (Form CA-1) alleging that on May 28, 2013 he sustained an upper
1

5 U.S.C. § 8101 et seq.

respiratory injury. He alleged that he was instructed to coat turpet gears with a spray lubricant.
Appellant did not wear a mask, therefore, he inhaled the lubricant which resulted in dizziness.
He first received medical treatment on May 28, 2013 the date of injury. Although the claim was
filed a year late appellant’s supervisor indicated that his knowledge of the facts of injury agreed
with the statements made by appellant.
In support of his claim, appellant submitted May 28 and June 4, 2013 reports from
Jeremy Hutson, a physician’s assistant (PA), who reported that on May 28, 2013 appellant
complained of a constant headache which had been present since May 21, 2013. PA Hutson
noted that appellant was exposed to strong smelling chemicals about one week prior. While
appellant did not have contact with the lubricant, the inhalation caused him a severe headache
and he was unable to get relief through over the counter medications. PA Hutson diagnosed
acute sinusitis and headache. In a June 4, 2013 report, he reported that appellant was originally
seen on May 28 for a headache which began on May 21, 2013. PA Hutson diagnosed acute
sinusitis and headache and released appellant medically, stating that he was expected to attain
full resolution in seven days.
By letter dated June 3, 2014, the employing establishment controverted the claim for lack
of evidence establishing fact of injury and causal relationship. It noted that appellant alleged
exposure to fumes on May 28, 2013 but his medical reports indicated that he had a headache
since May 21, 2013.
By letter dated June 9, 2014, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed to support his claim and was asked to respond within 30 days. He did not respond and no
evidence was received.
By decision dated July 9, 2014, OWCP denied appellant’s claim as the evidence was
insufficient to establish that he sustained an injury. It found that the May 28, 2013 incident
occurred as alleged; however, the evidence failed to provide a firm medical diagnosis which
could be reasonably attributed to the accepted employment incident.
On August 7, 2014 appellant requested reconsideration of OWCP’s decision. He stated
that he initially submitted his supporting documents to the wrong person and was resubmitting
this information on appeal.
In support of his claim, appellant resubmitted PA Hutson’s June 4, 2013 report. He also
submitted a June 4, 2013 duty status report (Form CA-17) and work status note signed by PA
Hutson.
By decision dated December 10, 2014, OWCP affirmed the July 9, 2014 decision, as
modified, finding that the evidence did not establish that appellant sustained an injury and also
failed to establish that the incident occurred as alleged. It noted that his Form CA-1 indicated the
date of injury as May 28, 2013, but the medical reports of record noted the date of injury as
May 21, 2013.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she 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. He or she must
also establish that such event, incident, or exposure caused an injury.5 Once an employee
establishes that he or she sustained 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, for which he
or she claims compensation is causally related to the accepted injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met his burden of proof when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2 at 1143.

5

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
6

Supra note 3.

7

Betty J. Smith, 54 ECAB 174 (2002).

3

To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that appellant failed to establish that he sustained a respiratory injury in
the performance of duty on May 28, 2013.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place, and manner of injury, a resulting personal injury, and that
his injury arose in the performance of duty. In its December 10, 2014 decision, OWCP found
that appellant did not establish that the incident occurred at the time, place, and in the manner
alleged. The Board finds, however, that the evidence of record is sufficient to establish that the
May 28, 2013 incident occurred, as alleged.
On his Form CA-1, appellant alleged that on May 28, 2013 he was instructed to coat
turpet gears with a spray lubricant and was not wearing a mask, causing him to inhale the
lubricant and become dizzy. Appellant’s supervisor stated that his knowledge of the facts of
injury agreed with the statements made by appellant. The employing establishment controverted
the claim and stated that the medical reports submitted identified the date of injury as May 21,
2013 and not May 28, 2013 as appellant has alleged in this claim.
While the employing establishment may controvert whether the May 28, 2013 incident
caused appellant his injury, it has not denied that he was exposed to fumes from a lubricant on
that date and thus, cannot deny the alleged facts to establish that the incident did not occur at the
time, place, and in the manner alleged. Appellant has alleged that exposure to hazardous fumes
on May 28, 2013 caused him injury. His supervisor agreed with his allegations regarding fact of
injury. Moreover, appellant received medical treatment on May 28, 2013, the alleged date of
injury. While PA Hutson’s reports stated that appellant’s headache began on May 21, 2013
when he was exposed to hazardous fumes, this does not negate the fact that he could have also
experienced exposure to hazardous fumes on May 28, 2013 causing injury. The Board does not
find exposure to fumes on two different dates as sufficient to establish that the incident did not
occur at the time, place, and in the manner alleged. Rather, these two dates become significant
when discussing causal relationship in determining whether appellant’s injury was caused by the
May 28, 2013 exposure as alleged in this claim, the May 21, 2013 exposure as noted in
8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

9

James Mack, 43 ECAB 321 (1991).

4

PA Hutson’s reports, or caused by an occupational exposure produced by his work environment
over a period longer than a single workday or shift rather than an injury from a single occurrence
within a single workday.10 Thus, the Board finds that, given the above referenced evidence,
appellant has alleged with specificity that the incident occurred at the time, place, and in the
manner alleged.11
Given that appellant has established a May 28, 2013 employment incident, the question
becomes whether he sustained an injury due to this incident. OWCP’s December 10, 2014
decision found that he did not submit sufficient medical evidence to establish a firm medical
diagnosis. The Board finds that he did not submit sufficient medical evidence to support that he
sustained an injury causally related to the September 10, 2014 employment incident.12 The
medical evidence is deficient on two grounds: first, it fails to provide a firm diagnosis; and
second, there is no narrative opinion on causal relationship between a diagnosed condition and
the employment incident.
The only medical evidence received was a May 28 and June 4, 2013 report from
PA Hutson, as well as a June 4, 2013 Form CA-17 and work status note. PA Hutson’s reports
are of no probative value and insufficient to establish appellant’s claim as they are not signed by
a physician. Registered nurses, licensed practical nurses, and physician’s assistants, are not
physicians as defined under FECA, and their opinions are of no probative value.13 It is well
established that a physician’s signature is required on a report in order for it to be considered as
medical evidence.14 Aside from the professional status of PA Hutson and even if the report was
signed by a physician, the report itself is not sufficiently rationalized to establish a diagnosis that
is causally related to the May 28, 2013 employment incident.15

10

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). If
appellant is alleging that his injury was produced from his work environment over a period longer than a single
workday or shift, he should pursue his claim by filing an occupational disease claim (Form CA-2) and submitting
rationalized medical evidence from a physician which describes how his federal employment duties caused his
injury.
11

See Willie J. Clements, 43 ECAB 244 (1991).

12

See Robert Broome, 55 ECAB 339 (2004).

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
14

B.M., Docket No. 11-725 (issued February 17, 2012).

15

Ceferino L. Gonzales, 32 ECAB 1591 (1981). The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address the specific factual
and medical evidence of record, and provide medical rationale explaining the relationship between the diagnosed
condition and the established incident or factor of employment. See Lee R. Haywood, 48 ECAB 145 (1996).

5

In the instant case, the record is without rationalized medical evidence establishing a
diagnosed medical condition causally related to the accepted May 28, 2013 employment
incident. Thus, appellant has failed to establish his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an upper respiratory injury in the performance of duty on May 28, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: June 9, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0525
Issued: November 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 18, 2018 appellant, through counsel, filed a timely appeal from an August 8,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that appellant’s diagnosed cervical
radiculopathy, cervical facet syndrome, cervical and lumbar radiculopathy, bilateral carpal tunnel
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.

syndrome, and bilateral wrist tenosynovitis are causally related to the accepted January 2, 2017
employment injury.
FACTUAL HISTORY
On January 3, 2017 appellant, then a 60-year-old bulk mail technician, filed a traumatic
injury claim (Form CA-1) alleging that, while at work on January 2, 2017, a chair rolled out from
under her, causing her to fall directly onto a cement floor, landing on her right side. She alleged
that this caused pain in her back, left chin, right leg extending to her hip, neck, and right arm.
Appellant also alleged subsequent sporadic headaches. She stopped work on January 3, 2017.
In a January 4, 2017 report, Dr. Deborah K. Witt, a family medicine practitioner, noted that
x-rays of appellant’s cervical spine, lumbar spine, and right pelvis were performed. She diagnosed
neck muscle spasm, acute bilateral low back pain without sciatica, acute post-traumatic headache,
acute right hip pain, and pain in joint of right shoulder. On January 6, 2017 Dr. Witt noted
appellant’s complaints of significant low back, right hip, and right shoulder pain after a fall and
advised that she could not work.
By development letter dated January 23, 2017, OWCP informed appellant of the
deficiencies of her claim and advised her of the type of medical and factual evidence needed to
establish the claim. It afforded her 30 days to submit the necessary evidence
In a February 10, 2017 letter, Dr. Witt described appellant’s history of injury and noted
that she had been seen on five occasions. She described x-ray findings and indicated that appellant
had noted point tenderness at the hip with decreased hip and low back range of motion, and mild
swelling with right buttock numbness. Dr. Witt noted ultimate diagnoses of lumbar radiculopathy
due to degenerative joint disease, aggravated by her fall. She advised that appellant could not
work.
By decision dated March 2, 2017, OWCP found that the January 2, 2017 incident occurred
as alleged, but denied the claim, finding that appellant had not submitted medical evidence
containing a medical diagnosis caused by the accepted employment incident.
On March 17, 2017 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
Additional medical evidence was submitted including a January 4, 2017 x-ray of
appellant’s cervical spine that demonstrated disc space narrowing, most severe at C5-6 and C6-7,
multilevel anterior osteophytes in the lower cervical spine, and mild foraminal narrowing at C4-5
bilaterally. Lumbar spine x-ray that day demonstrated degenerative disc space narrowing at S1-2
and facet arthropathy at L5-S1. Hip x-ray showed no fracture or degenerative joint disease of the
hip joints.
In a January 10, 2017 report, Dr. Jeremy David Close, Board-certified in family medicine,
noted examination findings of cervical spine soreness and mild right buttock pain on straight leg
raising. He reviewed the January 4, 2014 x-rays and indicated that they showed cervical and
lumbar degenerative changes. Dr. Close diagnosed radiculopathy of the cervical region and acute
right-sided low back pain without sciatica.
2

Dr. Witt completed a duty status report (Form CA-17) on February 7, 2017, noting findings
of decreased right hip and lumbar range of motion with radicular symptoms, and other disabling
conditions of obesity and arthritis. She advised that appellant could not return to work.
An April 4, 2017 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
demonstrated cervical spondylosis, most significant at C6-7.
By report dated April 18, 2017, Dr. Steven J. Valentino, a Board-certified osteopath
specializing in orthopedic surgery, noted symptoms of radiating neck pain which appellant related
to the accepted January 2, 2017 employment incident. Cervical spine examination demonstrated
significantly limited range of motion in all planes with spasm, facet synovitis, and effusion,
radiating arm pain with Spurling’s maneuver, and 4/5 weakness of the upper extremities with
decreased sensation. Lumbar spine examination demonstrated marked spasm, and straight leg
raising test reproduced low back and buttock pain. Appellant’s examination was otherwise normal.
Dr. Valentino diagnosed cervical (neck) pain, sprain of ligaments of cervical spine and lumbar
spines, and cervical radiculitis. He indicated that appellant’s ongoing symptoms and diagnoses
were related to her work injury by direct cause and by aggravation and recommended further
testing.
An upper extremity electromyogram/nerve conduction velocity (EMG/NCV) study on
May 1, 2017 demonstrated severe right and mild-to-moderate left carpal tunnel syndrome.
In a June 15, 2017 report, Dr. Scott M. Fried, a Board-certified osteopath specializing in
orthopedic surgery, described job duties appellant had performed for over 30 years at the
employing establishment. He noted her description of injury where she landed hard on her right
hand, hitting her shoulder, and entire right side on January 2, 2017. Dr. Fried described current
complaints of ongoing severe pain and discomfort with numbness and tingling in the right hand
and wrist, radiating neck and paracervical pain, and low back and right hip pain, with some left
upper extremity symptoms of intermittent numbness and tingling. He reviewed appellant’s x-rays,
MRI scan, EMG/NCV test, and Dr. Valentino’s report. Dr. Fried described cervical spine findings
of decreased range of motion, tenderness, muscle spasm, and noted that Tinel’s testing of the
median nerve at the wrist was positive bilaterally. Tinel’s and compression testing of the right
radial nerve at the elbow was positive, and Tinel’s was positive at the infraclavicular and
supraclavicular fossae of the right thoracic outlet. Phalen’s test was positive in the right hand, and
compression testing was positive in the wrist bilaterally. Synovitis was noted at the volar and
carpal tunnel in both wrists consistent with flexor tenosynovitis. Roos and Hunter’s tests were
positive on the right, and motor function of the right long thoracic nerve was decreased with
tenderness to palpation. Dr. Fried diagnosed right median and radial neuropathy, left median
neuropathy, right brachial plexopathy/cervical radiculopathy, scapular winging with long thoracic
neuritis, cervical strain and sprain with right radiculopathy and aggravation of cervical disc
disease, disc space narrowing at multiple levels with radiculopathy, and right shoulder rotator cuff
strain and sprain. He opined that there was “no doubt” that appellant had a significant injury on
June 2, 2017, with a side-bending whiplash injury that aggravated her cervical disc disease, a
traction injury to the nerve roots of C5 through T1 with evidence of long thoracic nerve stretch,
and traumatic injury to the radial and median nerves in the right upper extremity with double crush
syndrome. Dr. Fried recommended additional testing, a functional capacity evaluation, pain
management, and therapy.

3

During the hearing, held on July 12, 2017, appellant testified that, on January 2, 2017, she
fell onto her buttocks on a cement floor and then tilted to the right, involving her entire right side.
She indicated that she finished the two hours remaining on her shift, but became very sore and
went to see Dr. Witt on January 4, 2017, who took her off work. Appellant stated that she was not
under medical treatment prior to the January 2017 incident and had not returned to work. Counsel
argued that, as all conditions diagnosed by Dr. Fried and Dr. Valentino were causally related to
the accepted January 2, 2017 employment incident, the claim should be accepted for all diagnosed
conditions.
In a May 9, 2017 report, Dr. Valentino reiterated appellant’s physical findings. He advised
that the January 2, 2017 employment incident caused cervical and lumbar strain and sprain,
aggravation of cervical and lumbar degenerative disc disease, facet syndrome with cervical and
lumbar radiculitis, and cervical radiculopathy. Dr. Valentino maintained that when appellant fell
backwards onto her buttocks she hyperextended her cervical and lumbar spine, as confirmed by
physical examination. He advised that she could not return to work.
An upper extremity EMG/NCV study completed on August 2, 2017 demonstrated severe
right median nerve impairment at the wrist level, mild left median nerve impairment at the wrist
level, moderate right posterior interosseous nerve impairment at the radial tunnel level, normal on
the left, and mild right ulnar nerve impairment at the elbow level, normal on the left.
In a treatment note dated August 8, 2017, Dr. Fried described appellant’s ongoing
complaints of bilateral upper extremity and neck pain. He described physical examination findings
and advised that she remained significantly symptomatic and could not work.3
By decision dated August 18, 2017, an OWCP hearing representative modified the
March 2, 2017 decision, finding that appellant had established cervical and lumbar sprains and a
right shoulder sprain resulting from the January 2, 2017 employment injury. He further found,
however, that the medical evidence of record was insufficient to establish that additional
conditions of cervical radiculopathy, cervical facet syndrome, cervical and lumbar radiculopathy,
bilateral carpal tunnel syndrome, and bilateral wrist tenosynovitis were caused by her fall at work
on January 2, 2017.
LEGAL PRECEDENT
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.4 Causal relationship is a
medical issue, and the medical evidence required to establish a causal relationship is rationalized
medical evidence.5 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
3

Dr. Fried had previously advised that appellant had been fitted with a custom splint to address her documented
injuries.
4

Kenneth R. Love, 50 ECAB 276 (1999).

5

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

4

the specific employment factors identified by the employee.6 Neither the mere fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
It is well established that where employment factors cause an aggravation of an underlying
physical condition, the employee is entitled to compensation for periods of disability related to the
aggravation. Where the medical evidence supports an aggravation or acceleration of an underlying
condition precipitated by working conditions or injuries, such disability is compensable. However,
the normal progression of untreated disease cannot be said to constitute “aggravation” of a
condition merely because the performance of normal work duties reveal the underlying condition.
For the conditions of employment to bring about an aggravation of preexisting disease, the
employment must cause acceleration of the disease or precipitate disability.8
ANALYSIS
The Board finds that appellant has not established that the cervical radiculopathy, cervical
facet syndrome, cervical and lumbar radiculopathy, bilateral carpal tunnel syndrome, and bilateral
wrist tenosynovitis are causally related to the accepted January 2, 2017 employment injury.
Appellant submitted a January 10, 2017 report from Dr. Close who noted x-ray findings of
cervical and lumbar degenerative changes and diagnosed radiculopathy of the cervical region and
low right-sided low back pain without sciatica. Dr. Close, however, offered no opinion as to
whether his diagnosed conditions were causally related to the accepted employment incident of
January 2, 2017. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.9
Dr. Witt provided reports dated January 4 to February 10, 2017. On February 10, 2017 she
indicated that the ultimate diagnosis was lumbar radiculopathy due to degenerative joint disease,
aggravated by fall. The Board has long held that a mere conclusion, without the necessary medical
rationale explaining how and why the physician believes that a claimant’s accepted exposure could
result in a diagnosed condition, is insufficient to meet the claimant’s burden of proof.10 Dr. Witt
offered no rationalized medical explanation as to how, appellant’s accepted fall on January 2, 2017
would have caused her diagnosed condition. Without explaining how, physiologically, the
movements involved in the employment incident caused or contributed to aggravated lumbar
degenerative joint disease, Dr. Witt’s opinion is of limited probative value.11

6

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

7

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

8

A.C., Docket No. 08-1453 (issued November 18, 2008).

9

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

10

See A.B., Docket No. 16-0864 (issued November 16, 2016); Beverly A. Spencer, 55 ECAB 501 (2004).

11

C.D., Docket No. 17-1357 (issued May 4, 2018).

5

In an April 18, 2017 report, Dr. Valentino noted symptoms of radiating neck pain which
appellant related to the accepted January 2, 2017 employment injury. He described findings on
examination and diagnosed cervical (neck) pain, sprain of ligaments of cervical and lumbar areas
of the spine, and cervical radiculitis. Dr. Valentino indicated that appellant’s ongoing symptoms
and diagnoses were related to her work injury by direct cause and aggravation and recommended
further testing. He later advised on May 9, 2017 that, when appellant fell backwards onto her
buttocks, she hyperextended her cervical and lumbar spine, as confirmed by physical examination.
Appellant, however, indicated on the claim form that she landed on her right side when a chair
rolled out from under her. Although she testified during the July 12, 2017 hearing that she first
landed on her buttocks and then tilted to the right, the Board has held that contemporaneous
evidence is entitled to greater probative value than later evidence.12 Dr. Fried also commented
that appellant landed on her right side. Thus, Dr. Valentino’s opinion is also of limited probative
value as he based his opinion on a correct history and mechanism of injury.13 It is therefore
insufficient to meet appellant’s burden of proof to establish that her diagnosed conditions were
caused by the accepted January 2, 2017 employment injury.14
Dr. Fried submitted reports dated June 15 and August 8, 2017. In his initial report he
described appellant’s job duties and that she indicated that she landed hard on her right hand,
hitting her shoulder, and entire right side on January 2, 2017. Dr. Fried described complaints
involving the right hand and wrist, neck and paracervical area, low back, right hip, and left upper
extremity. He reviewed diagnostic studies and Dr. Valentino’s report. Dr. Fried described
physical examination findings and diagnosed right median and radial neuropathy, left median
neuropathy, right brachial plexopathy/cervical radiculopathy, scapular winging with long thoracic
neuritis, cervical strain and sprain with right radiculopathy and aggravation of cervical disc
disease, disc space narrowing at multiple levels with radiculopathy, and right shoulder rotator cuff
strain and sprain. He opined that there was “no doubt” that appellant had a significant injury on
June 2, 2017, with a side-bending whiplash injury that aggravated cervical disc disease, a traction
injury to the nerve roots of C5 through T1 with evidence of long thoracic nerve stretch, and
traumatic injury to the radial and median nerves in the right upper extremity with double crush
syndrome. In a treatment note dated August 8, 2017, Dr. Fried described appellant’s ongoing
complaints of bilateral upper extremity and neck pain. He described physical examination findings
and advised that appellant remained significantly symptomatic and could not work. The Board
finds that Dr. Fried also did not provide sufficient rationale. He did not describe the specific
mechanics of the diagnosed side-bending whiplash injury, or his other diagnosed conditions.
Without further explanation of how physiologically the January 2, 2014 fall caused or contributed
to the diagnosed condition, Dr. Fried’s opinion is of limited probative value.15

12

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

13

See C.K., Docket No. 17-1853 (issued August 27, 2018).

14

Id.; see supra note 4.

15

See supra note 13.

6

Appellant also submitted diagnostic studies in support of her claim. Diagnostic studies are
of limited probative value as they do not address whether the employment injury caused any
diagnosed conditions.16
On appeal counsel argues that the medical reports of Dr. Valentino and Dr. Fried establish
that the additional conditions should be accepted or, at the very least, further development of the
medical evidence by OWCP is warranted. In the instant case, the record lacks rationalized medical
evidence establishing causal relationship between the January 2, 2017 employment injury and the
additional diagnoses rendered by Dr. Valentino and Dr. Fried. Thus, appellant has not met her
burden of proof.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that her diagnosed cervical
radiculopathy, cervical facet syndrome, cervical and lumbar radiculopathy, bilateral carpal tunnel
syndrome, and bilateral wrist tenosynovitis are causally related to the accepted January 2, 2017
employment injury.

16

See supra note 9.

17

See J.S., Docket No. 18-0249 (issued August 27, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1555
Issued: April 21, 2017

Case Submitted on the Record

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

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a January 29, 2016 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 are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s wage-loss compensation and medical benefits, effective November 26, 2012, because
her accepted conditions had resolved; and (2) whether appellant established any continuing
residuals or employment-related disability after November 26, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On October 20, 2004 appellant, then a 50-year-old post office clerk, filed an occupational
disease claim (Form CA-2) alleging that the repetitive motion of her daily work activity caused
injury to her hands, wrists, forearms, and elbows. She continued to work light duty.3 OWCP
accepted appellant’s claim for bilateral tenosynovitis of the hands and wrists and bilateral lateral
epicondylitis.
On August 17, 2007 appellant accepted a full-time limited-duty assignment as a manual
distribution clerk. She stopped work on August 27, 2009 and filed a claim for wage-loss
compensation (Form CA-7). On the back of the Form CA-7, the employing establishment
indicated that there was no work available. OWCP paid wage-loss compensation benefits.
Appellant was placed on the periodic rolls beginning September 26, 2009.
Appellant was referred to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, on
May 26, 2011 for a second opinion examination to determine whether she continued to suffer
residuals and remained disabled due to her accepted conditions. OWCP referred appellant for a
functional capacity evaluation (FCE) with Thomas Kowalski, an occupational therapist. In
reports dated July 1 and August 5, 2011, Dr. Swartz reviewed appellant’s history and provided
findings on physical examination. He reviewed the findings from the FCE and noted
discrepancies and inconsistences in the Jamar grip testing, Cozen’s testing, provocative testing,
and sensory testing. Dr. Swartz reported that upon examination he did not find objective
evidence of residuals of appellant’s accepted bilateral upper extremity conditions. He related
that examination findings and appellant’s complaints were symptoms of early degenerative
arthritis, which was not an accepted condition. In a work capacity evaluation form, Dr. Swartz
indicated that appellant was able to work her usual job full time, with restrictions of lifting up to
20 pounds.
In an August 30, 2011 report, Dr. Robert J. Harrison, Board-certified in internal and
preventive medicine, he reviewed Dr. Swartz’ report and disagreed that appellant’s bilateral
upper extremity conditions had resolved. He related that he had treated appellant since
September 27, 2004 for bilateral tenosynovitis of the hand and wrist and lateral epicondylitis.
Upon physical examination, Dr. Harrison observed swelling of appellant’s third digit of the right
2

Docket No. 15-1510 (issued November 16, 2015). By decision dated November 16, 2015, the Board set aside
OWCP’s decision dated March 18, 2015, which denied appellant’s February 23, 2015 reconsideration request as
untimely filed, and remanded the case for OWCP to review appellant’s reconsideration request under the standard
for a timely request.
3

In an attached statement, appellant explained that on February 2, 1987 she filed a claim for a work-related injury
to her hands and arms and was placed on modified duty as a manual clerk. In June 2004 she was assigned to work
as a machine mail processor. Appellant asserted that the pain in her hands and arms worsened. She sought
treatment from her physician who diagnosed bilateral epicondylitis, bilateral wrist, tendinitis, and bilateral carpal
tunnel syndrome. Appellant was returned to her light-duty position as a manual clerk.

2

hand and pain over the dorsum of both hands with dorsiflexion. Tinel’s and Phalen’s sign were
negative. Dr. Harrison reported that appellant continued to have objective residuals of her hand
and wrist tenosynovitis. He explained that, although he acknowledged inconsistencies in the
FCE, appellant had consistently reported bilateral wrist pain over many years of treatment.
Dr. Harrison related that appellant could work with her usual restrictions.
OWCP determined that a conflict in the medical evidence existed between Dr. Harrison,
appellant’s treating physician, and Dr. Swartz, OWCP’s referral physician, with respect to her
employment-related conditions and her disability. It referred appellant, along with a statement of
accepted facts (SOAF) and the record, to Dr. Lin Ho, a Board-certified orthopedic surgeon, to
resolve the conflict.
In an April 30, 2012 report, Dr. Ho reviewed appellant’s history, including the SOAF,
and related that appellant had work-related diagnoses of bilateral wrist tendinitis and bilateral
lateral epicondylitis. He noted that appellant had not worked since August 28, 2009 because
there was no limited duty available. Dr. Ho related appellant’s complaints of pain that was
“moving around” and numbness over the entire left or right arm and weakness some of the time.
He discussed appellant’s medical records and conducted an examination. Dr. Ho reported no
crepitus or tenderness at either the flexor or extensor tendons of the forearms and no decrease in
touch or temperature perception over the right and left hands. He also observed mild swelling of
the right third proximal interphalangeal (PIP) joint but not crepitus in the fingers. Dr. Ho
provided normal range of motion findings of the wrists and elbows. Tinel’s, Phalen’s, and
Finklestein’s tests were negative bilaterally. He diagnosed resolved bilateral forearm pain.
Dr. Ho opined that examination of appellant’s upper extremities revealed no objective
findings except for swelling at the right third PIP. He related that a review of Dr. Harrison’s
reports also showed no positive objective findings and explained that findings of tenderness were
a subjective complaint. Dr. Ho also noted inconsistencies in the FCE with grip and cogwheel
nonfunctional response to strength testing. He opined that appellant may have endogenous
osteoarthritis of her right hand, which was nonindustrial. Dr. Ho concluded that appellant had no
residuals of her accepted work-related conditions and was able to return to her original position
as a mail clerk with no physical limitations due to her work-related disability. He provided a
work capacity evaluation form, which indicated that appellant was capable of working eight
hours per day with pushing, pulling, kneeling, squatting, climbing, and lifting up to 20 pounds.
OWCP proposed to terminate appellant’s wage-loss and medical benefits in a decision
dated October 24, 2012. It found that the weight of evidence rested with the opinion of the
impartial medical examiner, Dr. Ho, who determined in an April 30, 2012 report that there were
no objective findings to demonstrate continued residuals of her accepted bilateral tenosynovitis
of the hands and bilateral lateral epicondylitis conditions. Appellant was advised that she had 30
days to submit additional evidence or argument if she disagreed with the decision.
On November 14, 2012 OWCP received appellant’s letter dated November 9, 2012.
Appellant explained that she had been out of the country when OWCP’s October 24, 2012
Notice of Proposed Termination was mailed and delivered. She noted that she had since
scheduled another appointment with Dr. Harrison, but his earliest availability was on

3

November 19, 2012.
argument.

Appellant requested an extension to submit additional evidence or

In a decision dated November 26, 2012, OWCP finalized the termination of appellant’s
wage-loss and medical benefits, effective that date. It determined that as appellant had not
submitted any additional medical evidence or argument within 30 days of the proposed
termination notice, the evidence of record was insufficient to alter the recommendation to
terminate her medical and wage-loss compensation benefits.
On December 4, 2012 OWCP received appellant’s November 30, 2012 request for
hearing before an OWCP hearing representative.
Dr. Harrison continued to treat appellant. In a December 2, 2012 report, he noted
reviewing OWCP’s October 24, 2012 Notice of Proposed Termination and Dr. Ho’s April 30,
2012 referee medical report. Dr. Harrison indicated that upon examination he observed
tenderness over the flexor and extensor wrist compartments bilaterally, with positive Tinel’s sign
on both the right and left side. He pointed out that Dr. Ho had not examined appellant’s wrist
but merely reported pain over the forearm. Dr. Harrison reported that appellant clearly had
objective findings with tenderness over the flexor and extensor wrist compartments on both sides
and evidence of median nerve irritation based on the positive Tinel’s sign.
A hearing was held on March 27, 2013. Appellant’s representative at the time argued
that Dr. Ho’s April 30, 2012 referee medical report was very confusing because he found
appellant capable of working full duty, but noted work restrictions of 20 pounds. He noted that
appellant had a preexisting claim and returned to work with limitations, which carried over into
the 2004 injury. Dr. Ho asserted that because the employing establishment was unable to
accommodate these work restrictions, OWCP erred in terminating her wage-loss compensation
benefits. On direct examination, appellant described in detail her work duties as a mail clerk.
She related that she first sustained an injury in 1987 and was placed on limited duty. Appellant
explained that in 2004 her condition worsened and she was in terrible pain at the end of each
workday. She reported that she continued to work limited duty until 2009 when her supervisor
informed her that there was no work available for her.
Appellant also expressed her disagreement with OWCP’s referral physician’s
examinations and findings. She clarified that she described to Dr. Ho how the repetitive
movement of sorting mail caused her injury. Appellant’s representative further explained that
appellant would submit medical documentation from her psychiatrist, which supported
expansion of appellant’s claim to include a psychiatric condition. He asserted that both
Dr. Swartz’s and Dr. Ho’s reports lacked medical rationale to support their conclusion that
appellant did not suffer residuals of her accepted work conditions and was able to work. The
representative noted that Dr. Harrison had treated appellant since her 1987 injury and he
continued to opine that appellant still had residuals of her bilateral upper extremity condition and
could work with limitations. He requested that appellant’s claim be expanded to include a

4

psychiatric condition, that her claim be remanded for further development of the medical
evidence, and that her medical and wage-loss compensation benefits be reinstated.4
Appellant was also treated by Dr. George Demetrius Karalis, a psychiatrist. In an
April 20, 2013 report, he requested that appellant’s claim be expanded to include major
depression. Dr. Karalis reviewed appellant’s employment history and the injuries she sustained
at work. He provided findings on physical examination and psychological testing. Dr. Karalis
diagnosed major depression and explained that her depression and anxiety was caused by
appellant’s constant orthopedic pain and limited upper extremity range of motion.
In a May 3, 2013 report, Dr. Vatche Cabayan, a Board-certified orthopedic hand surgeon,
noted that appellant worked as a mail clerk and had an accepted claim for bilateral wrist
tendinitis and epicondylitis laterally. He related that appellant also had a previous claim from
1987 and had been working limited duty. Dr. Cabayan reported that appellant’s condition
worsened in 2004, which caused her to seek medical treatment from Dr. Harrison again. He
discussed the medical reports of Drs. Swartz, Ho, and Katalis and their findings.
Dr. Cabayan further related in a May 6, 2013 report that he reviewed appellant’s medical
records. He asserted that Dr. Swartz and Dr. Ho overlooked the issue of appellant’s limited
capacity since 1987. Dr. Cabayan provided a detailed description of the history of her bilateral
upper extremity condition and opined that in 2004 appellant experienced a worsening of her
initial injury with no permanent improvement. He explained that Drs. Swartz and Ho determined
that appellant had recovered from the injury in 2004, but they overlooked her first injury from
which she never recovered with limitation of function. Upon examination, Dr. Cabayan
observed tenderness along the carpal tunnel area on the left and tenderness along the medial and
lateral epicondylar surfaces bilaterally. He also noted tenderness along the base of the thumb
bilaterally and swelling along the PIP joint with no instability. Sensory function was normal
throughout. Dr. Cabayan diagnosed discogenic cervical condition with radiculitis, rotator cuff
involvement and bicipital tendinitis bilaterally, epicondylitis medially and laterally on the right
and left, carpometacarpal (CMC) joint inflammation of the thumb bilaterally, and mild stenosis
tenosynovitis along the A1 pulley of the thumb bilaterally and the index finger on the left.
Dr. Cabayan reported: “it is clear that the patient never recovered from her condition and
has had residuals from her condition and limitation with forceful activities precluded from her
usual job.” He noted that even though appellant continued working limited duty, her efficiency
was not as good. Dr. Cabayan related that appellant’s restrictions might have improved over the
years, but because of overuse, appellant’s treating physician never released her to greater than 5
pounds of lifting. He pointed out that even OWCP’s referral physicians, Dr. Swartz and Dr. Ho,
gave appellant restrictions although they claimed she had fully recovered. Dr. Cabayan
concluded that appellant continued to have permanent restrictions and could not work her usual
job position.
4

During the hearing, appellant’s representative submitted as evidence the job position for a distribution/window
clerk and a sales, services, and distribution associate, a letter dated April 12, 2011 which requested that appellant
submit medical documentation that she was physically capable of performing the duties of a sales, service, and
distribution associate, an August 27, 2009 Employee Leave Information letter, appellant’s statement dated
October 21, 2004, and Dr. Harrison’s August 31, 1987 medical report.

5

In a May 13, 2013 statement, appellant’s representative provided excerpts from
Dr. Cabayan’s May 6, 2013 report and Dr. Karalis’ April 20, 2013 report as evidence that
appellant’s disabling condition had not ceased and that she still required medical restrictions in
order to work. He asserted that because appellant had medical restrictions and the employing
establishment had no work available, OWCP erred in terminating appellant’s compensation.
Appellant’s representative also noted that appellant was not evaluated by a specialist for mental
disability due to pain. He requested that OWCP reinstate appellant’s compensation benefits and
pay her retroactively.
By decision dated June 12, 2013, an OWCP hearing representative affirmed the
November 26, 2012 decision terminating appellant’s wage-loss compensation and medical
benefits. She found that OWCP properly relied on the medical opinion of Dr. Ho, the referee
medical examiner, who determined that appellant’s accepted medical conditions had ceased. The
hearing representative also noted that the medical evidence appellant submitted after Dr. Ho’s
April 30, 2012 referee medical report did not provide a complete and accurate background or
adequate explanation of how the medical findings suddenly changed and were related to her
accepted condition.
On October 24, 2013 OWCP received appellant’s request, through her representative, for
reconsideration. The representative indicated that he was enclosing additional reports by
Dr. Karalis and Dr. Cabayan, which substantiated that appellant suffered from a condition that
was caused while in the performance of duty and continued until the present. He requested that
OWCP reconsider its decision, reinstate appellant’s compensation, and grant compensation
retroactively.
In a supplemental report dated September 8, 2013, Dr. Karalis expressed disagreement
with OWCP’s June 12, 2013 decision. He pointed out that in his report he repetitively referred
to different parts of the March 27, 2013 transcript, which indicated that he reviewed them.
Dr. Karalis reiterated that appellant suffered a job-caused major depression condition.
Dr. Cabayan also noted his disagreement with OWCP’s June 12, 2013 decision. In an
October 10, 2013 report, he clarified that he had extensively reviewed appellant’s records as
outlined in his reports. Dr. Cabayan also asserted that OWCP failed to mention that appellant
worked extensive overtime over the years. He pointed out that a proper medical diagnosis for
appellant’s condition could only be provided by a Board-certified orthopedic surgeon and hand
specialist. Dr. Cabayan noted that it was unclear whether OWCP’s referral physicians had a
hand specialty. He further reported that Dr. Swartz and Dr. Ho’s opinions were contradictory
because they opined that appellant had fully recovered, but provided work restrictions.
Dr. Cabayan reported that the fact that appellant had not worked since 2009 did not mean that
her hand condition had not progressed. He explained that cumulative trauma could present itself
after a patient is off work and progress, particularly if the patient is not involved in any other
activities to cause or worsen the cumulative trauma. Dr. Cabayan opined that the fact that a
patient was not aware of a hand condition at the time she stopped work did not negate the fact
that her hand condition could not result from the 30 years of work preceding her work stoppage.
By decision dated February 21, 2014, OWCP denied modification of the June 12, 2013
decision. It determined that the medical evidence submitted was of insufficient probative value

6

to create a conflict in medical opinion as they were based on an inaccurate history and lacked
sufficient medical rationale. OWCP further found that the evidence of record was insufficient to
modify the decision dated June 12, 2013 because it did not establish that appellant continued to
suffer residuals or have ongoing disability as a result of her accepted employment conditions.
On February 23, 2015 OWCP received appellant’s appeal request form, which indicated
that she was requesting reconsideration. In an attached statement, she explained that OWCP had
earlier found that Dr. Cabayan had relied upon her recitation of history, but not upon OWCP’s
statement of accepted facts. Appellant noted that she was attaching new evidence.
Appellant resubmitted Dr. Harrison’s October 14, 2013 progress reports, along with a
new progress report dated August 21, 2014. He indicated that he examined appellant for followup of bilateral hand tenosynovitis, chronic hand pain, and occasional numbness and tingling.
Dr. Harrison reported that examination of appellant’s wrists and hands demonstrated no palpable
masses, temperature abnormalities, tenderness, clicking or snapping, or joint effusion.
Neurological examination revealed negative Tinel’s and Phalen’s sign. Dr. Harrison diagnosed
other tenosynovitis of the finger and hand and lateral epicondylitis beginning from December 15,
2011 to the present and carpal tunnel syndrome on both sides from August 21, 2014 to the
present.
Along with Dr. Harrison’s progress notes, appellant also submitted April 15, 2013
hospital records, which indicated that appellant was treated in the emergency room by
Dr. Michael Fredericson, Board-certified in physical medicine and rehabilitation, for right carpal
tunnel syndrome. An electromyography (EMG) and nerve conduction velocity (NCV) lab result
report by Dr. Yousik Eugene Roh, Board-certified in physical medicine and rehabilitation,
demonstrated an abnormal electrodiagnostic examination with mild left median sensory
mononeuropathy across the wrist (i.e., carpal tunnel syndrome) but no electrodiagnostic evidence
of right median neuropathy or bilateral ulnar neuropathy.
In a February 19, 2015 statement, appellant explained that she was submitting additional
evidence of sufficient probative value to modify OWCP’s February 21, 2014 decision. She
noted that OWCP questioned the number of overtime hours that appellant worked and related
that she was enclosing evidence about her number of worked overtime hours from 2004 to 2008.
Appellant provided a table, which demonstrated the number of overtime hours she worked by
pay period from 2004 to 2008.
Appellant submitted another statement dated March 19, 2015 and related that she was
approved for disability retirement in 2014 for the same diagnosis made by Dr. Harrison. She
provided a letter dated September 3, 2014 from the Office of Personnel Management (OPM),
which approved her for disability retirement. Appellant resubmitted OWCP’s October 28, 2004
decision accepting her claim and a September 27, 2004 medical report by Dr. Harrison, which
noted diagnoses of bilateral epicondylitis, bilateral wrist tendinitis, and bilateral carpal tunnel
syndrome.
In a decision dated March 18, 2015, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error. Appellant appealed to the Board.

7

By decision dated November 16, 2015, the Board set aside OWCP’s decision dated
March 18, 2015, which denied appellant’s February 23, 2015 request for reconsideration as
untimely filed, and remanded the case for OWCP to review appellant’s reconsideration request
under the standard for a timely request because it was timely filed.5
Following the Board’s decision, OWCP conducted a merit review of appellant’s case. In
a decision dated January 29, 2016, it denied modification of the February 21, 2014 decision.
OWCP found that the medical evidence submitted did not provide any medical opinion
substantiating that appellant continued to be disabled due to her accepted employment
conditions. Accordingly, it determined that the special weight of medical evidence rested with
Dr. Ho’s November 26, 2012 referee medical report.
LEGAL PRECEDENT -- ISSUE 1
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.6 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.7 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.10
ANALYSIS -- ISSUE 1
OWCP determined that a conflict in medical opinion existed between Dr. Harrison,
appellant’s treating physician, who continued to support appellant’s need for continued medical
treatment for her accepted conditions, and Dr. Swartz, OWCP’s referral physician, who found
that appellant no longer suffered residuals or disability as a result of her accepted work
conditions. Appellant was referred to Dr. Ho for an impartial medical examination to resolve the
conflict.

5

Docket No. 15-1510 (issued November 16, 2015).

6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
10

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

8

In an April 30, 2012 report, Dr. Ho reviewed appellant’s history, including the SOAF.
Appellant’s claim had been accepted for bilateral wrist tendinitis and bilateral lateral
epicondylitis. He related appellant’s complaints of pain, not confined to a specific area,
numbness, and weakness in both arms. Upon physical examination, Dr. Ho reported no crepitus
or tenderness at either the flexor or extensor tendons of the forearms, no decrease in touch and
temperature perception over the hands, and normal range of motion of the wrists and elbows.
Tinel’s, Phalen’s, and Finklestein’s tests were negative bilaterally. Examination of appellant’s
hands revealed mild swelling of the right third PIP joint but not crepitus in the fingers. Dr. Ho
opined that there were no objective findings of her upper extremities except for swelling at the
right third PIP. He diagnosed resolved bilateral forearm pain and reported possible endogenous
osteoarthritis of her right hand, which was nonindustrial. Dr. Ho concluded that appellant had no
residuals of her accepted work-related conditions and was able to return to her position as a mail
clerk with no physical limitations due to her work-related disability. He provided a work
capacity evaluation form, which indicated that appellant was capable of working eight hours per
day with pushing, pulling, kneeling, squatting, lifting, and climbing up to 20 pounds.
The Board finds that Dr. Ho’s April 30, 2012 report was entitled to the special weight of
the medical opinion evidence to establish that appellant no longer suffered residuals of her
accepted bilateral upper extremity conditions and was able to work. Dr. Ho accurately described
appellant’s history and reviewed her medical records. He performed a thorough, clinical
examination and provided findings on examination. Dr. Ho opined that there were no objective
findings to support that appellant still suffered residuals of her accepted conditions. He further
noted that appellant’s subjective complaints were generalized and unspecific and the FCE
revealed inconsistent findings. The Board finds that Dr. Ho’s opinion was based on a proper
factual and medical history and he had thoroughly reviewed the relevant factual and medical
evidence.11 Accordingly, the Board finds that Dr. Ho’s opinion is entitled to special weight as
the impartial medical examiner and was sufficient for OWCP to justify the termination of
appellant’s wage-loss and medical benefits effective November 20, 2012.12
On appeal, appellant continues to disagree with Dr. Ho’s medical opinion. She contends
that Dr. Ho’s April 30, 2012 report was inconsistent as he authorized appellant to work her
regular duty, but provided work restrictions of 20 pounds. The Board finds, however, that
Dr. Ho explained in his report that appellant had no physical limitations due to her work-related
conditions. He did not, however, disregard the fact that appellant may have work restrictions due
to possible osteoarthritis of her right hand, which was not an accepted condition.13
Appellant has not submitted any objective rationalized medical evidence to establish that
she continued to suffer from or required medical treatment for conditions causally related to her

11

See Melvina Jackson, 38 ECAB 443 (1987).

12

Barry Neutuch, 54 ECAB 313 (2003).

13

See N.P., Docket No. 15-1580 (issued September 1, 2016) (finding that an impartial medical examiner’s report,
which authorized the claimant to work with restrictions, was entitled to special weight and established that the
claimant did not have any continuing disability causally related to her December 21, 2010 injury because the
restrictions were due to a nonwork-related injury).

9

accepted employment conditions.
benefits on November 26, 2012.14

OWCP, therefore, properly terminated her compensation

LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits on
November 20, 2012, the burden shifted to her to establish that she had any continuing disability
causally related to the accepted conditions.15 Causal relationship is a medical issue. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.16
ANALYSIS -- ISSUE 2
The Board finds that the medical evidence submitted following the November 26, 2012
termination is insufficient to establish disability due to her accepted conditions.
Appellant continued to submit reports dated December 2, 2012 to August 21, 2014 by
Dr. Harrison, appellant’s treating physician, who was on one side of the conflict resolved by
Dr. Ho. The Board has held that reports from a physician who was on one side of a medical
conflict are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner, or to create a new conflict.17
Dr. Cabayan also examined appellant. In a May 3, 2013 report, he related that appellant
had a previous claim from 1987 and a current claim accepted for bilateral wrist tendinitis and
epicondylitis laterally. Dr. Cabayan further noted that Drs. Swartz and Ho had determined that
appellant had recovered from the 2004 injury, but overlooked the issue of appellant’s continued
limited capacity since the 1987 employment injury. He provided examination findings and
diagnosed discogenic cervical condition with radiculitis, rotator cuff involvement and bicipital
tendinitis bilaterally, epicondylitis medially and laterally on the right and left, CMC joint
inflammation of the thumbs, and mild stenosis tenosynovitis along the A1 pulley of the thumbs
and the index finger on the left. Dr. Cabayan reported that appellant was able to work with
restrictions.
The Board finds that Dr. Cabayan’s reports are of diminished probative value as they do
not contain sound medical reasoning establishing that appellant was totally disabled after
November 26, 2012 due to the accepted bilateral upper extremity conditions. On the contrary,
Dr. Cabayan attributes appellant’s current limited capacity to the previous 1987 injury. He did
not specifically explain how appellant’s inability to work her usual job was causally related to
14

Manuel Gill, 52 ECAB 282 (2001).

15

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

16

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

17

I.J., 59 ECAB 408 (2008).

10

her accepted employment conditions of bilateral tenosynovitis of the hands and wrists and
bilateral lateral epicondylitis.18 The Board further notes that, in his May 6, 2013 report,
Dr. Cabayan diagnosed several conditions, which have not been accepted by OWCP as
employment related. As Dr. Cabayan failed to attribute appellant’s continued disability to her
accepted conditions, his reports are insufficient to establish work-related disability due to the
accepted conditions.19
Likewise, Dr. Karalis, in his April 20 and September 8, 2013 reports, also diagnosed
major depression and anxiety as a result of his job. These conditions, however, were not
accepted as employment related. The additional reports dated April 15, 2013, including
Dr. Fredericson’s hospital records and Dr. Roh’s EMG/NCV lab result report, also note
diagnoses for right carpal tunnel syndrome, which is not an accepted condition.
On appeal, appellant alleges that the medical reports by Drs. Harrison, Cabayan, and
Karalis provided sufficient evidence to establish that she continued to have residuals of her
employment injury. As explained above, however, these are reports are of diminished probative
value and fail to establish that appellant was unable to work due to her accepted bilateral upper
extremity conditions.
Appellant further asserts on appeal that OWCP summarily dismissed the reports by her
physicians and put an unreasonable “almost beyond-a-reasonable-doubt” burden of proof on her
to produce medical reports establishing industrial causation. The Board notes that appellant
bears the burden of proof to establish a causal relationship between her continued need for work
restrictions and her accepted bilateral upper extremity conditions. As OWCP met its burden of
proof to establish termination of appellant’s compensation benefits dated November 26, 2012,
the burden then shifted to appellant to establish continuing disability.20 Appellant has not,
however, submitted medical evidence sufficient to demonstrate continuing disability causally
related to her accepted conditions.

18

A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.
19

R.A., Docket No. 14-1327 (issued October 10, 2014).

20

Supra note 14.

11

The Board finds that Dr. Ho provided a comprehensive, well-rationalized opinion in his
April 30, 2012 impartial medical report, that appellant did not have any continuing disability
causally related to her accepted employment conditions.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 26, 2012, and that she has failed to
establish continuing employment-related disability after that date causally related to her accepted
conditions.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1130
Issued: February 15, 2008

Case Submitted on the Record

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

JURISDICTION
On March 20, 2007 appellant filed a timely appeal from a October 19, 2006 merit
decision of the Office of Workers’ Compensation Programs denying modification of a decision
terminating his compensation benefits and denying his request for a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant established that he had any continuing
employment-related disability after March 24, 2002; and (2) whether the Office properly denied
his claim for a schedule award.
FACTUAL HISTORY
This is the second appeal in the present case. In a November 29, 2004 decision, the
Board found that the Office met its burden of proof to terminate benefits effective
March 24, 2002 and that appellant failed to establish that he had any continuing

employment-related disability after March 24, 2002.1 The Board found that the January 15, 2002
report of Dr. Edward J. Resnick, a Board-certified orthopedic surgeon and an impartial medical
specialist, represented the weight of the medical evidence and supported the termination of
benefits. The facts and the circumstances of the case up to that point are set forth in the Board’s
prior decision and incorporated herein by reference.2
On May 13, 2005 appellant requested a schedule award and submitted a report from
Dr. Nicholas Diamond, an osteopath, dated February 17, 2005, who noted that appellant reached
maximum medical improvement on February 17, 2005. Dr. Diamond reviewed a history of
injury of June 17, 1991 and noted that appellant’s history was significant for motor vehicle
accidents in 1989 and 1990 in which he sustained a left knee injury and a shoulder and back
injury, respectively. He diagnosed post-traumatic internal derangement of the left knee,
aggravation of preexisting chondromalacia patella, status post left knee arthroscopic surgery with
partial medial meniscectomy and synovectomy, status post arthroscopic chondroplasty repair of
the patella, lateral and femoral condyles and partial lateral meniscectomy, post-traumatic
degenerative joint disease to the medial and lateral compartments, the patella and the femoral
trochleas of the left knee and derivative right knee injury. Dr. Diamond noted that the physical
examination of the left knee revealed gastrocnemius circumferences measuring 43.5
centimeters (cm) of the right versus 41 cm on the left, quadriceps circumferences measuring
10 cm above the patella revealed 49 cm on the right versus 47.5 cm on the left. He noted that
sensory examination of the bilateral extremities revealed no abnormalities and neurological
testing revealed normal tonus; however, atrophy was noted involving the quadriceps and
gastrocnemius musculature on the left. Dr. Diamond stated that, based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,3 (A.M.A.,
Guides) appellant sustained a 23 percent impairment of the left lower extremity. He opined that
the cause of appellant’s disability as well as his subjective and objective findings was the work
injury of June 17, 1991.
By letter dated June 15, 2005, appellant requested reconsideration of the Office’s
November 26, 2003 decision. He referenced Dr. Diamond’s report and asserted that it
established that he had residuals of his work-related injury and permanent impairment to both
legs.
In an October 23, 2006 decision, the Office denied modification of the prior decision. It
found that appellant was not entitled to a schedule award as his benefits were terminated on
March 24, 2002 and he no longer had residuals of his work-related injury.

1

The Office accepted the claim for aggravation of a preexisting left knee condition and paid appropriate
compensation. It authorized arthroscopy and meniscectomy of the left knee on September 20, 1991. Appellant
worked intermittently until June 22, 1992 when he stopped completely. The record reveals that he sustained several
nonwork-related injuries to his left knee. On May 16, 1989 appellant was involved in a motor vehicle accident and
sustained a tear of the posterior horn of the medial meniscus and underwent arthroscopic surgery; and on
September 19, 1989 he injured his left knee while exiting a bus.
2

Docket No. 04-1040 (issued November 29, 2004).

3

A.M.A., Guides (5th ed. 2001).

2

LEGAL PRECEDENT -- ISSUE 1
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injuries.4 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.5 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.6 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 1
The medical evidence submitted by appellant after termination of benefits did not
specifically address how any continuing condition was due to the June 17, 1991 work injury or
other incidents.
Appellant submitted a February 17, 2005 report from Dr. Diamond, who noted his
continued symptoms of swelling, pain and stiffness to both knees, with positive findings upon
physical examination and opined that he had residuals in both knees as a direct result of his work
injury of June 17, 1991. Dr. Diamond diagnosed post-traumatic internal derangement of the left
knee, aggravation of preexisting chondromalacia patella, status post left knee arthroscopic
surgery with partial medial meniscectomy and synovectomy, status post arthroscopic
chondroplasty repair of the patella, lateral and femoral condyles and partial lateral
meniscectomy, post-traumatic degenerative joint disease to the medial and lateral compartments,
the patella and the femoral trochleas of the left knee and derivative right knee injury. He
concluded that appellant was no longer able to perform his gainful employment as a sandblaster
due to his inability to crawl, kneel, climb and squat as a result of his work-related injury. The
Board finds that, although Dr. Diamond supported causal relationship in a conclusory statement,
he did not provide a rationalized opinion specifically addressing how any continuing condition
was due to the June 17, 1991 work injury.8 Additionally, he did not mention what effect if any
appellant’s prior nonwork-related injuries to the left knee would have on appellant’s continuing
4

See Manuel Gill, 52 ECAB 282 (2001).

5

Id.

6

Elizabeth Stanislav, 49 ECAB 540 (1998).

7

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

8

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

3

condition, specifically the May 16, 1989 motor vehicle accident where appellant sustained a tear
of the posterior horn of the medial meniscus and underwent arthroscopic surgery and the
September 19, 1989 injury to his left knee.
Dr. Diamond advised that appellant sustained a derivative right knee injury causally
related to the accepted work injury of June 17, 1991. However, the Office never accepted that he
sustained a right knee injury as a result of his June 17, 1991 work injury and there is no medical
rationalized evidence to support such a conclusion.9
None of the evidence submitted by appellant on reconsideration included a rationalized
opinion regarding the causal relationship between his current condition and his accepted
work-related injury of June 17, 1991.10 Therefore, the report from Dr. Diamond is insufficient to
overcome that of Dr. Resnick or to create a new medical conflict regarding whether appellant has
any continuing disability or condition causally related to his June 17, 1991 work injury.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Federal Employees’ Compensation Act11 and its
implementing regulations12 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 claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.13
ANALYSIS -- ISSUE 2
On appeal, appellant asserts that he is entitled to a schedule award for both legs as
supported by the February 17, 2005 report of Dr. Diamond. The Office accepted an aggravation
of his preexisting left knee condition and authorized arthroscopic surgery that was performed on
September 20, 1991. In a November 29, 2004 decision, the Board found that the Office met its
burden of proof to terminate benefits effective March 24, 2002 and that appellant failed to
establish that he had any continuing employment-related disability after March 24, 2002.14
Appellant requested reconsideration and by decision dated October 23, 2006, the Office denied
9

See Alice J. Tysinger, 51 ECAB 638, 646 (2000). See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an
employee claims that a condition not accepted or approved by the Office was due to an employment injury, he or she
bears the burden of proof to establish that the condition is causally related to the employment injury).
10

See Jimmie H. Duckett, supra note 8.

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404 (1999).

13

Id.

14

Supra note 2.

4

modification of the prior decision. It found that he was not entitled to a schedule award as his
benefits were terminated on March 24, 2002.
Regarding appellant’s right leg, the Office, as noted, has not accepted that his
employment caused any right leg condition. A schedule award can be paid only for a condition
related to an employment injury. 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.15 Consequently,
as appellant has not established that he has an employment-related right leg condition. The
Office properly denied consideration of a schedule award for the right leg.
The October 23, 2006 decision also found that appellant was not entitled to a schedule
award as his benefits were terminated on March 24, 2002. The March 24, 2002 decision was
not, however, a termination for refusal of suitable work under 5 U.S.C. § 8106(c).16 The
Office cited no authority for the proposition that a termination of compensation based on
medical evidence was a bar to seeking a schedule award for permanent impairment.
A claimant may have an employment-related condition that results in a permanent impairment
under the A.M.A., Guides without any disability for work or the need for continuing medical
treatment.17
Accordingly, in this case, the Office should have issued a merit decision with respect
to the claim for a schedule award for the left leg. The case will be remanded to the Office for
proper adjudication of the issue of the extent of impairment to appellant’s left lower extremity.
CONCLUSION
The Board finds that appellant failed to establish that he had any continuing disability
after March 24, 2002. The case will be remanded to the Office for a merit decision with respect
to appellant’s claim for a schedule award.

15

Veronica Williams, 56 ECAB 367 (2005).

16

The termination of compensation pursuant to 5 U.S.C. § 8106(c) is a bar to receipt of a schedule award for an
impairment related to the employment injury. See Stephen R. Lubin, 43 ECAB 564 (1992).
17

B.K., 59 ECAB ___ (Docket No. 07-1545, issued December 3, 2007).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 23, 2006 is affirmed in part and remanded in part.
Issued: February 15, 2008
Washington, DC

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

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

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

6