United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.U., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1953
Issued January 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSDAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the May 18, 2007 decision of the
Office of Workers’ Compensation Programs denying his occupational disease claim. On
May 25, 2007 the Office denied further merit review of appellant’s claim. Pursuant to 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 established that he sustained a knee injury in the
performance of duty causally related to factors of his federal employment; and (2) whether the
Office properly refused to reopen his case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On March 1, 2007 appellant, then a 54-year-old former sand blaster, filed an occupational
disease claim, Form CA-2, alleging that the condition of his knees was exacerbated by heavy
lifting, prolonged standing, bending, kneeling, squatting, crawling and walking from 1974 to
July 2004, (File No. 132168945). He first became aware of his condition on July 23, 2004 and

realized that it was aggravated by his employment on December 18, 2006. For 33 years,
appellant’s knees were subject to forceful and continuous use for at least eight hours per day. He
sustained a left knee injury over 25 years previously, but had remained asymptomatic until
July 23, 2004, when he injured his left knee while crawling through a hatch on an aircraft carrier.
Appellant first learned that he had bilateral degenerative arthritis when he was examined by a
second opinion physician, Dr. Roman Cham, a Board-certified orthopedic surgeon, on
December 18, 2006.
The employing establishment stated that appellant was separated from his position on
September 9, 2005 because no long-term light-duty position could be identified for him.
Appellant previously injured his left knee on July 23, 2004, (File No. 132111513), accepted by
the Office for sprains of the left knee and lateral collateral ligament. On March 7, 2007 the
Office terminated appellant’s wage-loss compensation for this claim based on the findings of
Dr. Cham, who concluded that appellant had no residuals from the temporary aggravation of his
preexisting moderate to severe arthritis.
The employing establishment provided two reports that Dr. Cham prepared for File
No. 132111513. On August 31, 2006 Dr. Cham reported that appellant experienced transient
knee complaints prior to his 2004 employment injury. On physical examination, he found that
appellant was morbidly obese, weighing 460 pounds and walked with an antalgic gait using a
cane. The range of motion in both of his knees was 0 to 95 degrees. The limitations were caused
by appellant’s advanced arthritis and obesity. Dr. Cham found pain and crepitus with the range
of motion in his knees. He took x-rays that showed markedly advanced bilateral degenerative
joint disease, left worse than right, with bone-on-bone collapse and evidence of subluxation of
the joints. Dr. Cham diagnosed severe degenerative arthritis, left greater than right and a
resolved contusion of the left knee. He found that appellant likely had a degenerative meniscus
tear which was caused by his arthritis rather than his 2004 injury. Dr. Cham opined that the
condition of appellant’s knees was related to his “severe morbid obesity in excessive loads that
were carried by his knees leading to cartilage overload and degeneration.” On December 18,
2006 Dr. Cham stated that any aggravation of appellant’s left knee condition was temporary and
had ended. He found no evidence that the accepted injury accelerated appellant’s condition as
his right knee was almost as bad as his left knee and had not been involved in the employment
injury.
On April 12, 2007 the Office requested that appellant provide additional factual and
medical information regarding his occupational injury claim. On May 8, 2007 appellant was
granted an extension until May 18, 2007 to submit the requested information. A response was
not received in the allotted time.
By decision dated May 18, 2007, the Office denied appellant’s claim. It accepted that he
was exposed to the work conditions and activities he alleged; however, it found that the medical
evidence did not demonstrate that these activities caused appellant’s degenerative knee
condition. The Office noted that Dr. Cham’s report indicated that appellant’s knee condition was
primarily related to his weight.
On May 23, 2007 the Office received two undated letters from appellant providing
additional information about his claim. Appellant stated that he worked for 20 years as a

2

sandblaster, performing high-pressure cleaning in the shop and on ships. At various times, his
duties required working on his knees in very confined spaces, working on his hands and knees on
hot, cold and rough surfaces, climbing through tunnels, climbing up and down bulkhead ladders
and carrying bags of sand weighing 50 to 100 pounds. When sandblasting, appellant used a
sweeping motion, which required him to twist from his knees while his feet were planted on the
ground. The sandblasting hose and nozzle he carried up to 12 hours per day weighed 35 to 40
pounds. When working in the shop, he stood for prolonged periods. Other physical
requirements of his employment included bending, squatting, stooping, crouching and walking
on flat and steeply inclined surfaces. Appellant stated that he worked from 8 to 15 hours a day,
five to seven days a week.
Appellant submitted medical treatment and progress notes from August 2004 to
February 2007. None of the physicians’ reports addressed appellant’s preinjury working
condition or activities. A February 13, 2007 physical therapy progress report stated that
appellant’s degenerative joint disease was due to a history of multiple knee injuries and work
activities such as climbing ladders, kneeling and crawling.
By decision dated May 25, 2007, the Office denied further review of the merits of
appellant’s case. It found that the medical evidence was not sufficient to reopen his case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability or specific condition for which compensation is
claimed is causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;3 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;4 and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.5
When determining whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors, the Office generally relies on the
1

5 U.S C §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Solomon Polen, 51 ECAB 341 (2000).

4

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

5

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

3

rationalized opinion of a physician.6 To be rationalized, the opinion must be based on a
complete factual and medical background of the claimant7 and must be one of reasonable
medical certainty,8 explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
Appellant has established that he has a diagnosed condition of the knees and that he was
subject to the accepted employment conditions. The issue to be determined is whether he has
established a causal connection between the two. The Board finds that appellant has not
provided sufficient medical evidence to establish that his bilateral degenerative arthritis was
caused or contributed to by the accepted factors of his federal employment.
The only medical evidence in the record at the time of the Office’s May 18, 2007
decision were the reports of Dr. Cham, a Board-certified orthopedic surgeon. On August 31,
2006 Dr. Cham reported that appellant had a history of transient knee complaints prior to his
2004 injury. He took x-rays that showed markedly advanced bilateral degenerative joint disease,
left worse than right, with bone-on-bone collapse and evidence of subluxation of the joints. On
physical examination, Dr. Cham found that appellant was morbidly obese and walked with a
limp, using a cane. Because of his advanced arthritis and obesity, the range of motion in both his
knees was limited to 95 degrees. Appellant experienced pain and crepitus in the motion in his
knees. Dr. Cham diagnosed severe degenerative arthritis, left greater than right and a resolved
contusion of the left knee. He opined that appellant had a degenerative meniscus tear which was
likely caused by his arthritis. Dr. Cham stated that the condition of appellant’s knees was related
to his “severe morbid obesity in excessive loads that were carried by his knees leading to
cartilage overload and degeneration.” On December 18, 2006 he stated that any aggravation of
appellant’s condition caused by his 2004 employment injury had ceased and that there was no
evidence his injury had accelerated his arthritis. The Board finds that these reports do not
establish a causal relationship between appellant’s accepted employment factors and his
diagnosed knee condition.
As the record contained no other medical opinion evidence establishing a connection
between appellant’s employment and his diagnosed condition, he failed to meet his burden of
proof.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits.10 Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations
6

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

5 U.S.C. § 8128(a).

4

provides that the application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that: (i) shows that the Office erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously
considered by the Office.11 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.12
ANALYSIS -- ISSUE 2
Appellant sent two undated letters and some medical evidence in response to the Office’s
April 12, 2007 request for information. The Office received them on May 23, 2007, following
the issuance of its decision denying his claim. The Board finds that appellant met none of the
regulatory requirements for a review of the merits of the Office’s May 18, 2007 decision.
The documents do not raise new arguments or present evidence that the Office
erroneously applied or interpreted a specific point of law. He also did not advance any relevant
legal arguments not previously considered by the Office. Appellant is thus, not entitled to
further review on the merits of his case under the first two subsections of section 10.606(b)(2).13
The documents submitted by appellant provided details about his employment activities
and the treatment of his knee condition. The Board finds that appellant’s descriptions of his
employment activities prior to his 2004 employment injury is repetitious or duplicative as his
employment activities were already accepted by the Office and thus, do constitute a basis for
reopening the case.14 The Board further finds that the new medical evidence is not relevant to
the issue of whether appellant’s accepted employment activities caused his degenerative knee
condition. The physician’s reports did not address appellant’s preinjury work activities or
address the relationship of his knee condition to his employment. The Board notes that one
physical therapy report stated that appellant’s employment-related climbing, kneeling and
crawling were causes of his degenerative joint disease. However, the Board has held that
physical therapy reports are of no probative value to the issue of causation because physical
therapists are not physicians as defined under the Act.15 Because there was no relevant and
pertinent new evidence for the Office to consider, appellant was not entitled to review under the
third section of 10.606(b)(2).16

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

13

20 C.F.R. § 10.606(b)(2)(i) and (ii).

14

See Eugene F. Butler, 36 ECAB 393 (1984); see also L.C., 58 ECAB ___ (Docket No. 06-1928, issued
May 31, 2007).
15

James Robinson, 53 ECAB 417 (2002); see also 5 U.S.C. § 8101(2).

16

20 C.F.R. § 10.606(b)(2)(iii).

5

The Board finds that, because appellant did not meet any of the statutory requirements for
a review of the merits of his claim, the Office properly denied further merit review of appellant’s
claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a knee injury causally related to factors of his federal employment; and that the Office
properly refused to reopen his case for further merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 25 and 18, 2007 are affirmed.
Issued: January 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0431
Issued: October 12, 2016

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 7, 2016 appellant, through counsel, filed a timely appeal of an October 27,
2015 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits as of June 9, 2015; and (2) whether appellant has established that she had
continuing disability caused by residuals of her accepted aggravation of left shoulder sprain and

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.

aggravation of brachial radiculitis conditions following the termination of compensation benefits
on June 9, 2015.
FACTUAL HISTORY
Appellant, then a 47-year-old distribution clerk on May 12, 2009, filed a traumatic injury
claim (Form CA-1) alleging that on September 22, 2008 after grasping mail with both hands, she
experienced pain in her hands, which radiated to her left shoulder, and caused a headache.3
On June 19, 2009 OWCP accepted her claim for aggravation of left shoulder sprain and
aggravation of brachial radiculitis. It commenced payment of compensation for temporary total
disability. Appellant received compensation benefits on the supplemental rolls paid retroactively
to October 8, 2008 and on the periodic rolls as of October 15, 2009.
In a report dated April 28, 2011, Dr. Mark A.P. Filippone, Board-certified in physical
medicine and rehabilitation and appellant’s treating physician, asserted that her condition was
unchanged and that her symptoms had persisted since his most recent reexamination of
March 29, 2011. He noted on examination that both shoulders and upper arms hurt and that she
was experiencing pain, guarding, and spasm in the cervical paraspinals. Dr. Filippone advised
that appellant underwent an electromyogram (EMG), which showed evidence of partial
denervation in the abductor pollicis brevis bilaterally, partial denervation in the mid-cervical
dorsal rami bilaterally, and in muscles in the left upper extremity, which demonstrated mild
partial denervation in muscles innervated by the left C5-7 cervical nerve roots. He opined that
there was motor sensory and nerve conduction evidence of bilateral carpal tunnel syndrome and
EMG evidence of partial denervation in muscles innervated by the mid cervical dorsal rami
bilaterally; there was also EMG evidence of left C5-7 cervical radiculopathy. Dr. Filippone
opined that all of these findings were consistent with the injuries she sustained while working for
the employing establishment and that she continued to be totally disabled.
In a January 27, 2012 report, Dr. Filippone reiterated that appellant continued to
experience right shoulder and neck pain, that her condition was unchanged and that she remained
totally disabled due to these conditions.
In a report dated May 14, 2012, Dr. Filippone asserted that appellant was experiencing
hot and burning neck pain, which he rated a 7.5 on a scale of 1 to 10 in intensity; he rated his left
shoulder pain as a 7 on a scale of 1 to 10, radiating into the left arm and into the left fingers. He
advised that appellant continued to be totally disabled. Dr. Filippone diagnosed disc herniations
at C5-6 and C6-7; bulging disc at C4-5; and cervical radiculopathy; left shoulder partial
thickness tear of the supraspinatus tendon; impingement of the rotator cuff; and glenohumeral
joint effusion/fluid within the subdeltoid bursa. He opined that these conditions were directly
and solely the result of the injuries she sustained while working for the employing establishment.
In order to determine appellant’s current condition and ascertain whether she still
suffered residuals from her accepted conditions, OWCP referred her for a second opinion
3

Appellant had initially filed a notice of recurrence (Form CA-2a) on March 17, 2009 alleging a September 21,
2008 recurrence of an October 22, 2003 injury. On May 28, 2009 OWCP informed appellant’s counsel that based
on the description of the circumstances surrounding this injury claim, the claim would be processed as a claim for
traumatic injury.

2

examination with Dr. Kenneth P. Heist, an osteopath Board-certified in orthopedic surgery. In a
June 13, 2012 report, Dr. Heist reviewed the medical history and the statement of accepted facts
(SOAF), stated findings on examination and concluded that her accepted left shoulder bursitis
and tendinitis conditions had resolved. He noted that appellant showed some restriction of
motion in her left shoulder, neck, and lumbar spine, which he attributed to her preexisting
conditions of degenerative spinal and joint disease. Dr. Heist opined that she was capable of
returning to work eight hours a day with restrictions no lifting exceeding 20 pounds occasionally
or 10 pounds frequently, and on lifting, carrying, pushing, pulling, or otherwise moving objects.
OWCP found that there was a conflict in the medical evidence between Dr. Filippone and
Dr. Heist, the second opinion physician, as to whether appellant still had residuals from her
accepted left shoulder and neck conditions. It referred her to Dr. Ian B. Fries, Board-certified in
orthopedic surgery, for an impartial medical examination. In a June 19, 2014 report, Dr. Fries
found that appellant had fully recovered from her accepted left shoulder and neck conditions. He
asserted that, while she had subjective findings of widespread, poorly defined tenderness of her
head, neck, and shoulder girdles, she had no objective evidence of significant musculoskeletal or
neurologic pathology; appellant had no signs of internal derangements of either shoulder and no
provocative signs to confirm radiculopathy. Dr. Fries reported that she had very poor recall,
which precluded him from depending on her for historical details; he also noted that her medical
records were incomplete. Nevertheless, he found that there was sufficient evidence to find that
she was no longer disabled due to the effects of her accepted conditions. Dr. Fries concluded
that appellant had no residuals from her brachial radiculitis and left shoulder conditions and
opined that she was physically capable of performing full duty at her date-of-injury position.
On May 7, 2015 OWCP issued a notice of proposed termination of compensation to
appellant. It found that the weight of the medical evidence, as represented by Dr. Fries’
impartial opinion, established that her accepted brachial radiculitis and left shoulder had ceased
and that she had no work-related residuals stemming from these conditions. It allotted appellant
30 days within which to submit additional evidence. Appellant did not respond within the
allotted time.
By decision dated June 9, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, finding that Dr. Fries’ impartial opinion represented the special weight of
the medical evidence.
On June 15, 2015 appellant, through her representative, requested a hearing before an
OWCP Branch of Hearings and Review hearing representative, which was held on
September 14, 2015.
In reports dated June 4 and 11, 2015, received by June 19, 2015, Dr. Filippone expressed
his disagreement with Dr. Fries’ opinion that appellant was capable of performing her preinjury
job and essentially reiterated his previous findings and conclusions. He conceded that appellant
had manifested certain “bizarre complaints” and symptom magnification, but opined that she was
not a “malingering” patient.
By decision dated October 27, 2015, an OWCP hearing representative affirmed the
June 9, 2015 termination decision.

3

LEGAL PRECEDENT
Under FECA, once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.7
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.8 For a conflict to arise the opposing physician’s viewpoints must be of “virtually
equal weight and rationale.”9 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.10
ANALYSIS
In this case, OWCP based its decision to terminate appellant’s compensation on the
opinion of Dr. Fries, the impartial medical physician. The Board finds that OWCP met its
burden of proof.
While appellant’s treating physician, Dr. Filippone, continued to opine following
physical examination that appellant was totally disabled; Dr. Heist, OWCP’s second opinion
physician opined, following physical examination, that appellant could return to work with
restrictions. OWCP properly determined that a conflict existed in the medical opinion evidence
and referred appellant to Dr. Fries to determine her disability status.11
On appeal, appellant’s counsel argues that Dr. Fries’ impartial medical report was vague,
insufficiently rationalized, presented inaccurate conclusions regarding appellant’s ability to
4

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

See Del K. Rykert, 40 ECAB 284 (1988). L.J., Docket No. 14-1682 (December 11, 2015).

7

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

8

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

9

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

10

Gary R. Sieber, 46 ECAB 215, 225 (1994).

11

See supra note 9.

4

perform her work duties and was based on an inaccurate SOAF. Counsel contends that because
the June 17, 2013 SOAF did not specifically list all of the restrictions stemming from appellant’s
prior work injury, which pertained to her upper extremities and neck, and because he noted that
the medical records were incomplete, Dr. Fries’ report cannot carry the weight of medical
evidence since it is based upon an inaccurate SOAF. He argues that Dr. Fries should have been
made aware of the modified mail processing job that appellant was performing at the time of her
2008 work injury to determine if she has residual disability. Appellant’s counsel notes that EMG
testing performed on May 3, 2013 confirmed that she continued to suffer from left C5-7
radiculopathies and that, during his physical examination, Dr. Fries noted that she had loss of
motion in her neck and upper extremities and loss of strength and sensory deficiencies in the
upper extremities. Lastly, counsel asserts that Dr. Fries was unable to quantify how much of
appellant’s disability was attributable to each of her previous work-related injuries. He therefore
argues that his report did not merit the special weight of a referee medical examiner.
The Board does not accept counsel’s contentions. Dr. Fries was provided a SOAF
describing the essential elements, including the accepted conditions, the job title and work
history, and the relevant medical history. In his 31-page report, he fully addresses appellant’s
job and medical history.12 Dr. Fries provided a thorough, exhaustive medical opinion based on
his examination of appellant and provided findings based on his examination, the SOAF and her
medical history. He concluded that she had no residuals from the only accepted conditions,
brachial radiculitis, and aggravation of left shoulder strain, and opined that she was physically
capable of performing full duty at her date-of-injury job. Dr. Fries reported that appellant had no
objective evidence of significant musculoskeletal or neurologic pathology, with no signs of
internal derangements of either shoulder and no provocative signs to confirm radiculopathy. He
opined that she had fully recovered and was no longer totally disabled due to her accepted left
shoulder and neck conditions. OWCP relied on Dr. Fries’ opinion in its June 9, 2015 decision,
finding that appellant had no residual disability or impairment causally related to her accepted
brachial radiculitis and left shoulder conditions.
The Board finds that Dr. Fries’ impartial opinion negates a causal relationship between
appellant’s continuing conditions and disability related to her employment. The medical
evidence of record establishes that appellant no longer has any residuals from her accepted
brachial radiculitis and left shoulder conditions.13 Dr. Fries’ opinion is sufficiently probative,
rationalized, and based upon a proper factual background. Therefore, OWCP properly accorded
his opinion the special weight of an impartial medical examiner.14 Accordingly, it properly
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5
(September 2009) and id. Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3(a)(4); see also
D.C., Docket No. 16-0430 (issued August 29, 2016).
13

The Board rejects counsel’s argument that Dr. Fries’ opinion is lacking in probative value because he did not
consider appellant’s specific work restrictions stemming from her previous work injury and did not enumerate the
degree of disability stemming from each of her work-related incidents. The question of whether appellant had any
residual disability stemming from her accepted conditions is a medical question, to be determined by a physician.
As OWCP’s impartial medical examiner, Dr. Fries was charged with determining whether she had any residuals
stemming from her accepted left shoulder sprain and aggravation of brachial radiculitis conditions, based on the
evidence of record. For the reasons noted in this decision, Dr. Fries’ findings in this regard are fully supported by
the evidence of record and his conclusions are fully rationalized and sufficient to merit the special weight of an
impartial medical examiner.
14

Supra note 10.

5

found that Dr. Fries’ impartial medical opinion negated a causal relationship between appellant’s
current condition and her accepted brachial radiculitis and left shoulder conditions and that it
represented the weight of the medical evidence in its June 9, 2015 termination decision.15
LEGAL PRECEDENT -- ISSUE 2
Following a proper termination of compensation benefits, the burden of proof shifts back
to the claimant to establish continuing employment-related disability.16 To establish a causal
relationship between the condition, any attendant disability, and the employment injury, an
employee must submit rationalized medical evidence based on a complete medical and factual
background, supporting such a causal relationship.17 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.18 To prevail, the claimant must establish by the weight of the reliable, probative, and
substantial evidence that he or she had an employment-related disability which continued after
termination of compensation benefits.19
ANALYSIS -- ISSUE 2
The issue of whether appellant is still entitled to compensation for continuing disability
and whether she continued to experience residuals from her accepted condition is a medical one,
based on the medical evidence of record.20 While she submitted the June 4 and 11, 2015 reports
from Dr. Filippone, these reports did not provide a probative medical opinion as to whether she
was disabled or currently required medical treatment due to an employment-related condition;
these reports merely restate one side of the conflict in medical evidence which was resolved by
Dr. Fries’ opinion.21 Dr. Filippone did not provide a well-reasoned and sufficiently supported
opinion that would vitiate OWCP’s June 9, 2015 determination that appellant did not have any
employment-related disability or residuals stemming from her accepted brachial radiculitis and
left shoulder conditions. Appellant did not provide a probative medical opinion as to whether
she was disabled or currently required medical treatment due to an employment-related
condition.22 For the reasons discussed above, OWCP’s hearing representative properly affirmed

15

See V.A., Docket No. 15-1073 (issued November 25, 2015).

16

Id.

17

Supra note 8.

18

See Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

19

See J.A., Docket No. 15-0908 (issued August 6, 2015).

20

Supra note 10.

21

See H.P., Docket No. 15-0568 (issued September 14, 2015) (the submission of reports by physicians who were
on one side of the conflict without more by way of rationale, were insufficient to create a new conflict in medical
opinion to overcome the special weight properly accorded the impartial medical examiner).
22

The Board notes that, in the event appellant believes that that a change in her work duties caused a worsening
of his previously accepted work injury, she may file a claim for a recurrence of disability or a new occupational
disease claim based on additional exposure at work for her new symptoms and need for additional medical
treatment.

6

the June 9, 2015 decision, which found that the special weight of the medical evidence was
represented by Dr. Fries, the impartial medical examiner.
A mere conclusion without the necessary medical rationale to explain how and why the
physician believes that appellant still has residuals of the accepted condition is not sufficient to
meet her burden of proof. The medical evidence must also include rationale explaining how the
physician reached his conclusion.23 Appellant thus did not meet her burden of proof to establish
continuing disability after June 9, 2015. The Board will affirm the hearing representative’s
October 27, 2015 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits as of June 9, 2015. The Board further finds that she has not met her
burden of proof to establish continuing employment-related disability after June 9, 2015.

23

See T.M., Docket No. 08-975 (issued February 6, 2009) (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.

7

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2016
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
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-198
Issued: March 10, 2015

Case Submitted on the Record

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

JURISDICTION
On November 5, 2014 appellant filed a timely appeal from an October 28, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,2 the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury in the performance of duty on September 13, 2013.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this
evidence as its review of the case is limited to the evidence that was before OWCP at the time of its final decision.
20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

On appeal appellant asserts that the injury is compensable because the claimed motor
vehicle accident occurred during lunch when he left his duty station, his home office, to drive to
a park to take a walk and clear his head.
FACTUAL HISTORY
On September 30, 2013 appellant, then a 60-year-old internal revenue agent, filed a
traumatic injury claim alleging that at 11:30 a.m. on September 13, 2013 he injured his lower
back, left shoulder, left wrist, and thumb when his car was hit from behind while he was waiting
for a light to change. The employing establishment responded that he was not in the
performance of duty because he was injured at lunch time and that no medical evidence had been
received. Appellant’s duty hours were listed as 7:30 a.m. to 4:15 p.m., Monday through Friday.
By letter dated October 2, 2013, OWCP informed appellant of the type of evidence
needed to support his claim. This was to include answers to an attached questionnaire which
asked him to describe the claimed motor vehicle accident, provide witness statements and
documentation regarding the accident, and asked him to explain how he could be considered to
be in the performance of duty since the accident occurred at lunchtime. Appellant was also to
provide a physician’s opinion as to how the injury resulted in a diagnosed condition. He was
given 30 days to respond.
Medical evidence was obtained by OWCP. A September 19, 2013 computerized
tomography (CT) scan of the head was within normal limits. In a September 24, 2013 treatment
note, Dr. Patricia N. Barnwell, Board-certified in family medicine, noted that appellant reported
that his vehicle had been rear-ended on September 13, 2013. She indicated that appellant had a
past history of stroke in 2008 and stated that he did not immediately seek medical attention but
was now complaining of a headache and difficulty focusing. Physical examination demonstrated
painful neck and back range of motion. Dr. Barnwell diagnosed headache, back and neck pain,
and prescribed medication.
On November 7, 2013 OWCP found that fact of injury had not been met and denied the
claim. It noted that appellant had not provided any factual evidence regarding the accident as
requested and that the medical evidence submitted did not support that the injury occurred as
described.
Appellant timely requested a review of the written record. He attached a November 19,
2013 report from Dr. Patricia N. McClendon,3 who stated that appellant was under her care and
was seen on September 19, 2013 for what he described as a worsening headache as a result of a
September 13, 2013 motor vehicle accident. Dr. McClendon noted the negative CT scan results
and appellant’s additional complaints of neck, back, and left thumb pain. She described painful
neck and back range of motion, spasm, and stiffness. Dr. McClendon stated that appellant had
been referred to physical therapy and on November 1, 2013 his condition had improved.
Appellant also attached information regarding physical therapy appointments and an unidentified
treatment note.
3

Dr. McClendon and Dr. Barnwell are apparently the same person.

2

By decision dated March 18, 2014, an OWCP hearing representative found that the
record did not establish that an injury occurred at the time, place, or in the manner alleged and
affirmed the November 7, 2013 decision. He noted that appellant had failed to provide
documentation regarding the accident and did not seek medical care until September 19, 2013.
On July 9, 2014 appellant requested reconsideration. In a March 24, 2014 statement, he
maintained that he was in pain from the moment of the accident and could hardly fill out all
required police accident forms. Appellant stated that he declined medical care at that time and
instead took his car to a body shop. He stated that his duty hours were 7:30 a.m. to 4:15 p.m.
with a 45-minute lunch period, typically from 11:30 a.m. to 12:15 p.m. Appellant stated that
after the accident he had increasing back, neck, arm, and wrist pains as well as slurring of speech
and had two months of physical therapy and pain medication. He submitted evidence previously
of record and a list of physical therapy appointments and leave taken. Correspondence dated
February 10, 2014 from Government Employees Health Association, Inc. (GEHA) reflected a
September 13, 2013 loss and provided information regarding subrogation.
In a merit decision dated October 28, 2014, OWCP noted that it had not received any
evidence to support that the claimed injury occurred while appellant was performing duties of
employment at the time and place described and denied modification of the prior decisions.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee/employer relation. Instead, Congress
provided for the payment of compensation for “the disability or death of an employee resulting
from personal injury sustained while in the performance of his duty.”4 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.”5 In deciding whether an injury is covered by FECA, the
test is whether, under all the circumstances, a causal relationship exists between the employment
itself, or the conditions under which it is required to be performed, and the resultant injury.6
The Board has recognized, as a general rule, that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or lunch,
4

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

5

George E. Franks, 52 ECAB 474 (2001).

6

Mark Love, 52 ECAB 490 (2001).

3

are not compensable as they do not arise out of and in the course of employment. Such injuries
are merely the ordinary, nonemployment hazards of the journey itself which are shared by all
travelers.7 There are recognized exceptions which are dependent upon the particular facts
relative to each claim: (1) where the employment requires the employee to travel on the
highways; (2) where the employer contracts to and does furnish transportation to and from work;
(3) where the employee is subject to emergency calls, as in the case of firefighters; and (4) where
the employee uses the highway to do something incidental to his employment with the
knowledge and approval of the employer.8
ANALYSIS
The Board finds that appellant has not established an employment-related injury in the
performance of duty on September 13, 2013. The evidence does not establish that the claimed
injury occurred at a time when he was reasonably said to be engaged in his master’s business, at
a place where he was reasonably expected to be in connection with the employment, or while he
was reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.9
Appellant claimed that he was in a motor vehicle accident at 11:30 a.m. on September 13,
2013, stating that he was on a lunch break, leaving his duty station in his home office, to drive to
a park and take a walk to clear his head. He did not respond to OWCP’s request on October 2,
2013 to explain how he could have been in the performance of duty at that time.
As noted above, as a general rule, when off premises during a lunch break, injuries are
not compensable.10 While there are exceptions to this rule,11 these exceptions are not applicable
in this case. There is no evidence to support that appellant was injured while on an emergency
call, that he was travelling on the road as part of his employment, or that he was subjected to a
special inconvenience, hazard, or urgency of travel that would bring the claimed injury within
coverage of FECA.12 Appellant’s stated reason for leaving his claimed telework office at home
was to take a lunch break and go for a walk to clear his head, an excursion that was purely
personal in nature. His claimed injury occurred away from his place of employment while he
was engaged in nonemployment activities and represented a nonemployment hazard which was
shared by the general public.13

7

Cheryl Bowman, 51 ECAB 519 (2000).

8

J.E., 59 ECAB 119 (2007).

9

Supra note 5.

10

Supra note 7.

11

Supra note 8.

12

See E.B., Docket No. 06-2178 (issued February 27, 2007).

13

Id.

4

Finally, if an employee has fixed hours of work, as appellant did, his departure from the
telework space would remove him from compensability, under the rules stated above.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an employment-related
injury in the performance of duty on September 13, 2013.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

See S.F., Docket No. 09-2172 (issued August 23, 2010). For cases involving claimed telework injuries, see
Mona M. Tates, 55 ECAB 128 (2003); John B. Shutack, 54 ECAB 336 (2003); Julietta M. Reynolds, 50 ECAB
529 (1999).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF ENERGY,
ENVIRONMENTAL MANAGEMENT
PROGRAM, NORTH FLORIDA/SOUTH
GEORGIA VETERANS HEALTH SYSTEM,
Lake City, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

Appearances:
Fred L. Brittain, Sr., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2422
Issued: June 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 3, 2008 appellant filed a timely appeal from a November 16, 2007 merit
decision of the Office of Workers’ Compensation Programs denying continuation of pay and a
December 19, 2007 merit decision denying his claim for an employment-related injury. He also
timely appealed a July 16, 2008 nonmerit decision of the Branch of Hearings and Review
denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly denied continuation of pay on the
grounds that appellant failed to give written notice of injury within the time limitation provision
of the Federal Employees’ Compensation Act; (2) whether he established that he sustained an
injury on August 23, 2007 in the performance of duty; and (3) whether the Branch of Hearings
and Review properly denied his request for an oral hearing as untimely. On appeal, appellant’s

representative contended that appellant injured his back on August 14, 2006 while operating a
floor buffer.
FACTUAL HISTORY
On November 8, 2007 appellant, then a 50-year-old housekeeping aid, filed a traumatic
injury claim (Form CA-1) alleging that on August 23, 2007 he experienced low back pain while
using a floor scrubber and that he sustained a sprain/strain of his lower back and buttocks. The
employing establishment noted that he did not miss any time from work.
By decision dated November 16, 2007, the Office denied continuation of pay on the
grounds that appellant did not report his injury on an Office approved form within 30 days.
In a November 16, 2007 letter, the Office notified appellant of the deficiencies in his
claim and requested additional information.
In a worksheet, J. Craig, a certified rehabilitation registered nurse, stated that he was
referred to appellant’s case on November 16, 2007.1 He noted that appellant had stopped work
on October 16, 2007. Mr. Craig stated that he called appellant on November 16, 2007 and that
appellant had returned his call. Appellant stated that on August 23, 2007 he aggravated a
previous August 14, 2007 injury and that he was returning to work on December 5, 2007.
Mr. Craig informed appellant that he needed to mail medical documentation to the Office within
30 days. He also noted that appellant underwent surgery on November 13, 2007.
In an August 23, 2007 medical note, Richard Medeiros, an advanced registered nurse
practitioner, stated that appellant had low back pain on his left side that radiated into his left
thigh. Appellant stated that he had back pain the day prior and when he got out of the car that
morning the pain worsened. He also stated that this was not an on-the-job injury.
In a December 19, 2007 decision, the Office denied the claim, finding that appellant did
not establish that the incident occurred as alleged because the medical evidence was inconsistent
with his statements in his claim.
Appellant filed a request for an oral hearing before an Office hearing representative. The
envelope containing the request was postmarked May 27, 2008.
By decision dated July 16, 2008, the Office denied appellant’s request for an oral hearing
on the grounds that his request was not made within 30 days after the issuance of the
December 19, 2007 decision. It also found that the issue could be equally well addressed by
appellant requesting reconsideration and submitting new evidence.

1

It appears the worksheet was signed on November 13, 2007; however, most of the conversations Mr. Craig
referenced in the document occurred subsequent to that date.

2

LEGAL PRECEDENT -- ISSUE 1
Section 81182 of the Act3 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2)4 provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury
shall be given in writing within 30 days after the injury.5
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a written claim
within 30 days of the injury.6 When an injured employee makes no written claim for a period of
wage loss within 30 days, he is not entitled to continuation of pay, notwithstanding prompt
notice of injury.7
The Act’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.8
ANALYSIS -- ISSUE 1
On November 8, 2007 appellant filed a notice of traumatic injury (Form CA-1) for an
alleged August 23, 2007 employment injury. Because the claim was not filed within 30 days of
the injury, as specified in section 8118(a) and 8122(a)(2) of the Act, the Board finds that he is
not entitled to continuation of pay.9
LEGAL PRECEDENT -- ISSUE 2
An employee who claims benefits under the Act10 has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the
2

5 U.S.C. § 8118.

3

Id. at §§ 8101-8193.

4

Id. at § 8122(a)(2).

5

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

6

Id. at § 8119(a).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

20 C.F.R. § 10.205(a)(1-3). See also Carol A. Lyles, 57 ECAB 265 (2005).

9

See Laura L. Harrison, 52 ECAB 515 (2001).

10

5 U.S.C. §§ 8101-8193.

3

reliable, probative and substantial evidence.11 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.12 An employee has not met
his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.13 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.14 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.15
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.16 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.17
ANALYSIS -- ISSUE 2
The issue is whether appellant established that he sustained a back and buttocks injury on
August 23, 2007 as alleged.
Appellant filed a traumatic injury claim on November 8, 2007 alleging that he injured his
back and buttocks while using a floor scrubber on August 23, 2007. However, in a medical note
dated August 23, 2007, Mr. Medeiros reported appellant’s claims that he had low back pain the
day prior and that he experienced pain when he got out of the car that day. He also relayed
appellant’s statement that his injury was not work related.

11

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007); George W. Glavis, 5 ECAB 363, 365 (1953).

12

M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); George W. Glavis, supra note 11.

13

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

14

M.H., supra note 12; John D. Shreve, 6 ECAB 718, 719 (1954).

15

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Wanda F. Davenport, 32 ECAB 552,
556 (1981).
16

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

17

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

4

The Board finds that appellant has not met his burden of proof to establish that the
August 23, 2007 incident occurred as alleged. The record is devoid of any evidence which
would support appellant’s recitation of the events of that date. Appellant did not file a claim
until several months after the injury and did not submit any evidence indicating that he informed
his supervisors of the injury prior to the filing of his claim. Further, on his claim form, the
employing establishment noted that appellant did not miss any work, thus, it would appear that
he continued to work despite the alleged injury. While appellant did seek contemporaneous
medical treatment, Mr. Medeiros’s report of appellant’s statement on the day of the alleged
injury is in direct opposition to appellant’s assertions that he injured himself using a floor
scrubber at work. While appellant’s claims regarding the events of the August 23, 2007 incident
are of great probative value, the evidence of record directly refutes his statements, thereby
casting serious doubt upon the validity of his claim.18 Therefore, the Board finds that appellant
did not establish that the August 23, 2007 work incident occurred as alleged.19
The Board notes that on appeal, appellant’s representative contends that appellant injured
his back on August 14, 2006 while operating a floor buffer. The only evidence that would begin
to support this argument is the worksheet where Mr. Craig related appellant’s claims that he
aggravated a previous August 14, 2007 injury. However, it is unclear whether Mr. Craig’s
worksheet is referring to the August 14, 2006 injury alleged on appeal or a different injury
occurring a year later. Because there is no other evidence of record relating to an August 14,
2006 or 2007 injury, nor has appellant mentioned this injury in his claim or filed a separate claim
alleging this injury, appellant’s contention on appeal lacks merit.
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought. If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.20 The Board has held that the Office, in its broad
discretionary authority in the administration of the Act,21 has the power to hold hearings in
certain circumstances where no legal provision was made for such hearings and that the Office
must exercise this discretionary authority in deciding whether to grant a hearing.22 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when

18

See James C. Williams, 32 ECAB 722 (1981).

19

See id.

20

Claudio Vazquez, 52 ECAB 496 (2001).

21

5 U.S.C. §§ 8101-8193.

22

Marilyn F. Wilson, 52 ECAB 347 (2001).

5

the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.23
ANALYSIS -- ISSUE 3
The Office issued a merit decision denying appellant’s claim on December 19, 2007.
Appellant’s request for an oral hearing was postmarked May 27, 2008. As this was over 30 days
after December 20, 2007, the Board finds that appellant was not entitled to an oral hearing before
a hearing representative as a matter of right.24 The Office exercised its discretion in this case and
found that appellant’s claim could equally well be addressed by requesting reconsideration and
submitting additional evidence. The only limitation on the Office’s authority is reasonableness.25
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are contrary to logic and deductions of known
facts.26 There is no evidence of record that the Office abused its discretion in denying
appellant’s request for a hearing under these circumstances.
Thus, the Board finds that the Office did not abuse its discretion in denying appellant’s
request for an oral hearing before a hearing representative.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his August 23,
2007 injury as he failed to timely file the notice of injury. The Board also finds that he did not
establish that he sustained an injury on August 23, 2007 in the performance of duty. Finally, the
Board finds that the Branch of Hearings and Review properly denied his request for an oral
hearing as untimely.

23

Claudio Vazquez, supra note 20.

24

See Angel M. Lebron, Jr., 51 ECAB 488 (2000) (the date of the event from which the designated period of time
begins to run shall not be included when computing the time period). See 20 C.F.R. § 10.616(a) (the hearing request
must be sent within 30 days as determined by postmark or other carrier’s date marking).
25

Linda J. Reeves, 48 ECAB 373 (1997).

26

See Daniel J. Perea, 42 ECAB 214 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2008 and December 19 and
November 16, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1195
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2019 appellant filed a timely appeal from a March 28, 2019 merit decision and
a May 2, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 29, 2018 appellant, then a 39-year-old customs and border protection
officer, filed a traumatic injury claim (Form CA-1) alleging that on November 28, 2018 he injured
his right knee when it struck the metal corner of a secondary inspection area conveyor belt while
in the performance of duty.
In a report dated December 20, 2018, Dr. Trong B. Nguyen, a Board-certified orthopedic
surgeon, examined appellant and diagnosed internal derangement of right knee. In a work excuse
note of the same date, he indicated that appellant was to be off work until January 20, 2019. In a
diagnostic report of the same date, Dr. David P. Juice, a Board-certified diagnostic radiologist,
administered an x-ray of appellant’s right knee and noted an impression of no acute osseous
abnormality.
In a report dated January 22, 2019, Dr. Nguyen diagnosed right knee contusion in addition
to the previously diagnosed right knee internal derangement. He indicated that appellant was
unable to work for two weeks, but then could return to work without restrictions.
In a development letter dated February 22, 2019, OWCP informed appellant that, when his
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work, and thus it administratively approved payment of a limited amount of medical expenses.
However, it advised him that his claim was reopened for consideration of the merits because the
medical bills had exceeded $1,500.00. OWCP further informed appellant of the deficiencies of
his claim and requested that he provide medical evidence to establish that the diagnosed condition
resulted from the alleged incident. It afforded him 30 days to submit the necessary evidence. .
In response to OWCP’s development letter, appellant resubmitted Dr. Juice’s
December 20, 2018 diagnostic report and Dr. Nguyen’s January 22, 2019 report.
By decision dated March 28, 2019, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that his diagnosed conditions were causally related to the
accepted November 28, 2018 employment incident.
On April 30, 2019 appellant requested reconsideration of OWCP’s March 28, 2019
decision. He submitted no additional evidence along with his request.
By decision dated May 2, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
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

2

time limitation period,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 if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident.
In support of his traumatic injury claim, appellant submitted two narrative reports dated
December 20, 2018 and January 22, 2019, and a work excuse note dated December 20, 2018, from
Dr. Nguyen. In his reports, Dr. Nguyen diagnosed internal derangement of right knee and right
knee contusion. However, he did not provide an opinion as to the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.10
Because Dr. Nguyen has not provided a reasoned opinion explaining how the November 28, 2018

3

J.C., Docket No. 18-1503 (issued May 2, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4
E.S., Docket No. 18-1750 (issued March 11, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

S.C., Docket No. 18-1242 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16,
2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

J.C., supra note 3; Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

C.W., Docket No. 19-0231 (issued July 15, 2019).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10
L.C., Docket No. 19-0804 (issued August 23, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

3

employment incident physiologically caused or aggravated appellant’s knee condition, his reports
are insufficient to establish this claim.11
In his December 20, 2018 diagnostic report, Dr. Juice noted an impression of no acute
osseous abnormality. The Board has held that diagnostic reports do not offer an opinion regarding
the cause of an employee’s condition and are therefore of no probative value on the issue of causal
relationship.12 Thus, Dr. Juice’s report is insufficient to meet appellant’s burden of proof.
The Board has held that a claimant has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence.13
Because appellant failed to provide such evidence demonstrating that his diagnosed knee
conditions were causally related to the accepted November 28, 2018 employment incident, he has
not met his burden of proof to establish his traumatic injury 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.14 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).15 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (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.16 Section 10.608(b) provides that when a request for reconsideration is

11

K.J., Docket No. 18-1520 (issued June 13, 2019).

12
J.T., Docket No. 18-0664 (issued August 12, 2019); see L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., No. 17-1549 (issued July 6, 2018).
13

Supra note 9.

14

5 U.S.C. § 8128(a).

15
20 C.F.R. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must
be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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. Id. at Chapter 2.1602.4b.
16

Id. at 10.606(b)(3).

4

timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under section 10.606(b)(3).
OWCP denied appellant’s claim as it determined that he had not established that his
diagnosed knee condition was causally related to the accepted November 28, 2018 employment
incident. Appellant did not submit additional evidence along with his April 30, 2019 request for
reconsideration. Because he has not submitted relevant and pertinent new evidence not previously
considered by OWCP, he is not entitled to a review of the merits of his claim based on the third
above-noted requirement under section 10.606(b)(3).
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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

17

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the May 2 and March 28, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Lenin Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 12-961
Issued: September 24, 2012

Case Submitted on the Record

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

JURISDICTION
On March 26, 2012 appellant filed a timely appeal of a December 15, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the claim. 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 December 15, 2011 decision. Since more than 180 days has elapsed between the last merit
decision on April 12, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant review of the merits of the claim for compensation
pursuant to section 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 24, 2011 appellant, then a 37-year-old letter carrier filed an occupational
disease claim (Form CA-2) alleging that she suffered emotional stress, with physical
complications, due to harassment and a hostile work environment. On the claim form, she stated
that her supervisor had targeted her for harassment. Appellant submitted a February 8, 2011
report from Dr. Gerard Boutin, a psychologist.
By letter dated February 25, 2011, OWCP requested additional factual and medical
evidence. By decision dated April 12, 2011, it denied the claim for compensation, noting that
appellant had not submitted additional evidence.
By letter dated December 5, 2011 appellant, through her representative, requested
reconsideration. She submitted a statement from a coworker, who discussed appellant’s
relationship with the supervisor and stated that several times he saw the supervisor approach
appellant in an aggressive manner and yell at her. Another coworker submitted a statement
indicating that she worked next to appellant and heard conversations between appellant and the
supervisor, noting that appellant was intimidated and upset. Appellant also submitted a witness
statement from a customer, who stated that she had witnessed appellant being followed and
observed by the supervisor while working.
In a decision dated December 15, 2011, OWCP determined that appellant’s application
for reconsideration was insufficient to warrant merit review of the claim. It found that she had
not submitted new and relevant evidence. According to OWCP, appellant had failed to provide a
detailed description of the alleged harassment and therefore the submitted evidence was not
relevant.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”3 Section
10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.4

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

2

ANALYSIS
In the present case, appellant submitted an application for reconsideration by letter dated
December 5, 2011. The letter did not discuss a specific point of law or raise a legal argument.
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific point
of law, or advance a relevant legal argument not previously considered by OWCP.
Appellant did, however, submit new evidence in the form of three witness statements.
The claim for compensation filed was for an emotional condition causally related to alleged
harassment and a hostile work environment created by a supervisor. The witness statements had
not been submitted previously and therefore constitute evidence not previously considered. The
Board notes that OWCP had not accepted as factual the allegation of harassment or hostile work
environment. Evidence such as witness statements regarding a specific factual allegation, which
has not been established as compensable, may be relevant to the underlying claim for an
emotional condition.5 In this case, appellant submitted witness statements regarding interaction
between her and the supervisor that are relevant to the underlying factual issue.
OWCP appears to find that appellant did not submit a detailed description of the alleged
harassment and, therefore, no witness statements would be relevant. No authority was provided
for this finding. The issue is not whether appellant has met her burden of proof to establish the
claim. Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations require only that
appellant submit relevant and pertinent evidence not previously considered by OWCP. The
evidence submitted is new, relevant and pertinent to the factual issues in the case. Appellant has
met the requirement of 20 C.F.R. § 10.606(b)(2)(iii), and is entitled to a merit review of her
claim. The case will be remanded for a decision on the merits of the claim.
CONCLUSION
The Board finds appellant’s application for reconsideration sufficient to warrant a merit
review of the claim for compensation.

5

See Dallas Marlatt, Docket No. 00-609 (issued March 16, 2001) (new witness statements as to claimant’s
workload was relevant to the allegation of overwork).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 24, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
S.S. STRATTON VETERANS MEDICAL
CENTER, Albany, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1390
Issued: April 1, 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 July 9, 2018 appellant filed a timely appeal from a May 1, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted March 28, 2017 employment incident.
FACTUAL HISTORY
On April 7, 2017 appellant, then a 53-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that, on March 28, 2017, he injured his low back when he experienced
1

5 U.S.C. § 8101 et seq.

unexpected dead weight when transferring a patient from a lounger to a wheelchair, while in the
performance of duty. He stopped work on March 28, 2017.
In a report dated March 28, 2017, Dr. Gene Pellerin, an osteopath Board-certified in
emergency medicine, noted the history of appellant’s March 28, 2017 employment incident, his
symptoms, and provided a diagnosis of a “strain.”
Appellant also provided a series of notes from Dr. Claude D. Guerra, a chiropractor. In the
March 29, 2017 initial examination report, Dr. Guerra noted the history of appellant’s injury and
presented examination findings, which included lumbar and cervical spasm and abnormal/
restricted range of motion in the lumbar and cervical areas. With checkmark notations, he
indicated that appellant’s history of injury was consistent with his objective findings. Dr. Guerra
also opined that appellant was temporary totally disabled due to severe pain, spasms, and restricted
lumbar and cervical range of motion. He continued to opine, in his other chiropractic notes, that
appellant was temporarily totally disabled. No diagnostic tests or referrals were recommended.
OWCP also received an April 6, 2017 excuse note from an emergency department, which
appeared to be signed by a physician assistant, which held appellant off work through April 11,
2017; and an April 12, 2017 note from a nurse practitioner, which indicated that appellant was off
work on March 28, 2017 for back pain and that he remained off work from April 11 through
May 12, 2017.
In an April 24, 2017 note, Dr. Patrick Coleman, a family practitioner, reported that
appellant was injured at work on March 28, 2017 and that he had not improved despite frequent
chiropractic treatments. He noted that appellant was scheduled for a magnetic resonance imaging
(MRI) scan.
By development letter dated April 27, 2017, OWCP advised appellant that further medical
evidence was necessary to establish that a diagnosed medical condition was causally related to the
alleged employment incident. It noted that the medical evidence submitted must be from a
qualified physician and notified him of the circumstances under which a chiropractor can be
considered a physician under FECA. OWCP afforded appellant 30 days to submit the necessary
evidence.
In an April 6, 2017 report, Dr. Sirus A. Kermani, a Board-certified emergency room
physician, reported that appellant had injured his back while shoveling about a month prior and
had reinjured his back while moving a patient at work last week. He diagnosed back pain.
OWCP thereafter received chiropractic treatment notes from Dr. Guerra dated April 14,
16, 18, 21, and 24, 2017, which indicated that appellant was temporarily totally disabled. In an
April 28, 2017 chiropractic note, Dr. Guerra noted that appellant was to return to work on May 2,
2017 without restrictions.
In a May 3, 2017 attending physician’s report (Form CA-20), Dr. Coleman diagnosed low
back pain with sciatica which he opined was work related as appellant’s pain began after lifting a
patient at work. He noted that both plain x-rays on April 12, 2017 and the MRI scan on April 26,
2017 showed mild degenerative changes at L4-5 and L5-S1.

2

By decision dated June 1, 2017, OWCP accepted that the March 28, 2017 incident occurred
as alleged. However, it denied the claim finding that the medical evidence of record was
insufficient to establish that appellant’s diagnosed back conditions were causally related to the
accepted March 28, 2017 employment incident.
OWCP thereafter received an undated statement from appellant, which noted his activities
following the March 28, 2017 injury, and physical therapy reports dated May 3 and 8, 2017.
In a June 19, 2017 report, Dr. Luke V. Rigolosi, a Board-certified physiatrist, noted the
history of the March 28, 2017 employment injury, that appellant was out of work from March 28
to May 8, 2017, and that he had been treated by a chiropractor. He provided an impression of
history of work-related back injury with lumbar sprain/strain, currently resolved.
On February 1, 2018 appellant requested reconsideration.
By decision dated May 1, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 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.4
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.5 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.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7

2

Id.

3

See J.R., Docket No. 18-1079 (issued January 15, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
4

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

5

See J.R., supra note 3; B.F., Docket No. 09-0060 (issued March 17, 2009).

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.

3

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted March 28, 2017 employment incident.
Dr. Pellerin provided March 28, 2017 treatment notes which reported the history of
appellant’s March 28, 2017 employment incident and diagnosed a “strain.” While it can be
deduced from the report that the strain refers to appellant’s back, there is no opinion or discussion
as to whether appellant’s employment activity on March 28, 2017 caused the strain. The Board
has held that medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.10 Therefore, this
report is insufficient to establish the claim.
Appellant’s chiropractor, Dr. Guerra, treated appellant from March 29, 2017. However,
he failed to obtain x-rays or provide a diagnosis of appellant’s medical condition. Chiropractors
are considered physicians only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.11 Findings and/or opinions of chiropractors which are not based on x-ray evidence of
subluxation will not suffice for purposes of establishing entitlement to FECA benefits.12
Dr. Guerra’s reports are therefore of no probative medical value.
Dr. Kermani, in his April 6, 2017 report, noted that appellant had injured his back while
shoveling a month prior and reinjured his back while moving a patient at work the prior week. He
provided a diagnosis of back pain. The Board has consistently held that pain is a symptom and
not a compensable medical diagnosis.13

8

J.P., Docket No. 18-1165 (issued January 15, 2019).

9

M.L., Docket No. 17-1026 (issued April 20, 2018).

10

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

11

5 U.S.C. § 8101(2); see A.L., Docket No. 18-0420 (issued August 21, 2018); T.W., Docket No. 17-1819 (issued
March 14, 2018); Kathryn Haggerty, 45 ECAB 383, 389 (1994).
12
See A.R., Docket No. 18-1126 (issued December 7, 2018); A.L., supra note 11; R.M., Docket No. 17-1656 (issued
January 16, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
13
See L.M., Docket No. 18-0473 (issued October 22, 2018); B.P., Docket No. 12-1345 (issued November 13, 2012);
C.F., Docket No. 08-1102 (issued October 2008).

4

Dr. Coleman, in his May 4, 2017 report, noted appellant’s history of injury and provided a
valid medical diagnosis of sciatica. He also indicated that the April 2017 x-rays and MRI scan
report showed mild degenerative changes at L4-5 and L5-S1. However, Dr. Coleman failed to
provide a well-reasoned medical opinion supported by objective findings as to how the March 28,
2017 employment incident either directly caused or aggravated the diagnosed medical condition
of sciatica.14 In any case where a preexisting condition involving the same part of the body is
present and the issue of causal relationship therefore involves aggravation, acceleration, or
precipitation, the physician must provide a rationalized medical opinion that differentiates between
the effects of the work-related injury or disease and the preexisting condition.15 As he failed to do
so, his report is insufficient to establish appellant’s claim.
Dr. Rigolosi, in his June 19, 2017 report, noted the history of the March 28, 2017
employment injury. While he opined that appellant had a work-related back injury with lumbar
sprain/strain, currently resolved, he failed to provide a medical explanation of how the diagnosed
resolved lumbar sprain/strain physiologically resulted from the accepted March 28, 2017 work
incident. Absent an explanation, Dr. Rigolosi’s report is insufficient to establish causal
relationship.16
The record also includes physical therapy notes, an April 6, 2017 physician assistant note,
and an April 12, 2017 note from a nurse practitioner. The Board has held that reports from physical
therapists, physician assistants, and nurse practitioners lack probative value as those health care
providers are not considered physicians under FECA.17 Consequently, this evidence is insufficient
to establish appellant’s claim.18
As the record does not contain rationalized medical evidence establishing causal
relationship between the accepted March 28, 2017 employment incident and appellant’s back
conditions, the Board finds that appellant has not met his burden of proof.19
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.

14

See S.H., Docket No. 17-1524 (issued December 21, 2017).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

16

See J.M., Docket No. 17-1002 (issued August 22, 2017).

17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18
See A.M., Docket No. 18-0542 (issued November 1, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law).
19

See T.M., Docket No. 18-0972 (issued December 13, 2018).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted March 28, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 1, 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

6