United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.R., Appellant
and
U.S. POSTAL SERVICE, PASADENA MAIN
POST OFFICE, Pasadena, CA, Employer
__________________________________________

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

Docket No. 20-0743
Issued: January 28, 2021

Case Submitted on the Record

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

JURISDICTION
On February 18, 2020 appellant filed a timely appeal from an October 15, 2019 merit
decision and a December 26, 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition causally related to the accepted May 22, 2019 employment incident; and (2) whether
OWCP properly denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as
untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 4, 2019 appellant, then a 31-year-old sales service distribution associate, filed a
traumatic injury claim (Form CA-1) alleging that on May 22, 2019 she developed severe anxiety,
stress, and depression while in the performance of duty. She explained that the postmaster, station
master, and carrier supervisor neglected to inform the will-call and window supervisor about a
customer that threatened a letter carrier with a gun. Appellant asked the station manager to assist
the customer because she did not feel safe. When the station manager refused to assist, appellant
called the police and reported that the customer began verbally abusing and assaulting her and the
station manager. She stopped work on May 29, 2019.
In a June 25, 2019 letter, the employing establishment controverted appellant’s claim
questioning why she waited 7 days to complain about the incident, and why she waited 13 days to
seek medical attention.
In a development letter dated July 3, 2019, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for completion. OWCP afforded appellant 30 days
to submit the necessary evidence.
In a June 3, 2019 note, Dr. C. Carl Wilson, a physician of behavior health and licensed
professional clinical counselor, requested that appellant’s medical leave be extended until July 8,
2019 and noted that he would be seeing her weekly for intensive outpatient therapy.
Appellant submitted a July 3, 2019 medical note signed by Jean Woo, a nurse practitioner.
In a July 11, 2019 development letter, OWCP requested that the employing establishment
provide additional information, including comments from a knowledgeable supervisor and an
explanation of the alleged May 22, 2019 employment incident. It afforded the employing
establishment 30 days to submit the necessary evidence.
Appellant submitted a May 22, 2019 crime report from the Pasadena Police Department in
which she described the customer and alleged that the customer made threats against her and
attempted to assault her.
In a May 23, 2019 personal statement, appellant described the May 22, 2019 employment
incident in which she noticed an irritated customer kept asking appellant to get her mail. A
supervisor and appellant asked the customer for her address in order to retrieve her mail, but the
customer refused to provide the information and started yelling. Appellant then asked the customer
for her identification so that she could verify that the name on the mail matched hers, but she
refused to provide her identification. After receiving her identification and address, appellant
informed the station manager that the customer was acting irrationally and that she needed his
assistance. The station manager informed appellant that it was not his zone and instructed her to
get assistance from someone else. Appellant eventually explained to the customer that her mail
was being returned to the sender and alleged that the customer became belligerent and threatened
the employing establishment’s staff. She then called the police.

2

In a July 3, 2019 request to return-to-duty form, Dr. Wilson opined that appellant did not
need restrictions to her work schedule and recommended that she return to work on July 29, 2019.
In a work capacity report of even date, he diagnosed acute stress disorder and opined that she
should continue her therapy. Dr. Wilson checked a box marked “Yes” to indicate his belief that
appellant’s condition was work related.
Dr. Wilson, in a July 10, 2019 report, noted his understanding of a history of an
employment incident in which a hostile client harassed appellant. Appellant informed him that
she feared for her safety at work and asserted that the employing establishment did not care as they
still allowed the hostile client to enter the employing establishment even though she had a
restraining order. She reported that she had experienced symptoms of depression and sleep loss
due to work-related stress. Dr. Wilson provided notes of previous appointments dating from
May 31 to July 10, 2019 and diagnosed an acute stress reaction. He reported that appellant’s
prognosis was good and recommended that she complete cognitive behavioral therapy and
emotional regulation.
In response to OWCP’s development questionnaire, appellant submitted a July 23, 2019
statement in which she explained that after the claimed May 22, 2019 employment incident she
was embarrassed, frightened, stressed, and scared because she knew that the customer would
return. She was upset that the station manager refused to help and that the employing
establishment still allowed the customer into the building to harass other customers and employees.
Appellant asserted that she was told that she was overreacting. In a separate statement of even
date, she again described the claimed May 22, 2019 employment incident in detail and the actions
she took during the time the customer began to verbally assault her and her coworkers. Appellant
also explained that she had no source of stress outside of work.
In a July 31, 2019 statement, K.P., appellant’s coworker, reported that appellant asked her
and a supervisor to provide a witness statement concerning the claimed May 22, 2019 employment
incident. According to the supervisor, the customer threatened to get her gun after a separate
incident and the employing establishment stopped delivering her mail.
In an undated witness statement, J.W., appellant’s coworker, described that on May 22,
2019 a customer was screaming at the top of her lungs at the will-call staff. He went over to assist
and appellant informed him that the station manager refused to help and would not come to the
front because he was familiar with the situation and knew that the woman was potentially
dangerous. The customer eventually left after 15 minutes when she was informed that the police
were called. The police informed the staff that the woman had earlier threatened the carrier with
a gun. J.W. stated that the customer later made a YouTube video in which she stated that she had
just been released from jail and that it was one of the supervisor’s fault that she was arrested and
not receiving her mail. Out of fear of the customer returning, he and the staff requested protective
action from the employing establishment for at least a week. During a day when protection was
not provided, the customer returned to the employing establishment and J.W. went to the back for
assistance after she began getting louder and filming the interaction on camera. J.W. noted that he
had not felt safe after a subsequent meeting in which the postmaster denied telling the staff to call
the police and that the postmaster had not handled the situation properly.

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OWCP continued to receive evidence. In a partially legible May 31, 2019 witness
statement, R.D., a window supervisor, described the May 22, 2019 employment incident in which
a very upset customer came to the employing establishment ringing a bell, using profanity, and
requesting her mail. After informing her that her mail had been returned, the customer continued
to yell at the post office staff until the police were eventually called. R.D. noted that she felt the
station manager did not try to help and claimed that she had also experienced headaches and
anxiety as a result of the incident.
By decision dated October 15, 2019, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish a diagnosed medical condition
causally related to the accepted May 22, 2019 employment incident. It explained that Dr. Wilson’s
medical specialty was a physician of behavior health, which was not recognized as a treating
physician under FECA. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On a request form postmarked November 26, 2019 and received by OWCP on December 6,
2019 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings
and Review.
In support of her request, appellant resubmitted a copy of Dr. Wilson’s June 3, 2019
medical note, now cosigned by Dr. Shima Hadidichi, Board-certified in family medicine.
Appellant resubmitted a copy of Nurse Woo’s July 3, 2019 medical note, which was now
cosigned by Dr. Hadidichi, who advised that appellant rest from work due to anxiety. She noted
that appellant would be able to return to work on July 29, 2019.
Appellant also resubmitted a copy of Dr. Wilson’s July 10, 2019 medical report, now
cosigned by Dr. Hadidichi.
An August 28, 2019 medical fact sheet by Dr. Hadidichi indicated that appellant was
treated from August 28 to September 16, 2019 for her symptoms related to a May 22, 2019 “threat
in the workplace.” The form included diagnoses of stress, anxiety, depression, and chronic posttraumatic stress disorder (PTSD).
By decision dated December 26, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request finding that the request for hearing was untimely filed as it was
postmarked November 26, 2019, more than 30 days after its October 15, 2019 merit decision.
After exercising its discretion, OWCP further found that the issue in the case could equally well
be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
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
2

Id.

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limitation of FECA, that an injury was sustained 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. 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.3
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) medical evidence establishing that he or she has
an emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to his or her emotional
condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.6
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.8
Rationalized medical opinion evidence is required to establish causal relationship. 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 factors
identified by the claimant.9

3

M.H., Docket No. 19-0930 (issued June 17, 2020); Gary J. Watling, 52 ECAB 357 (2001).

4

R.B., Docket No. 19-0343 (issued February 14, 2020).

5

28 ECAB 125 (1976).

6

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

7

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838 (1987).

8

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470 (1993).

9
D.M., Docket No. 20-0314 (issued June 30, 2020); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the accepted May 22, 2019 employment incident.
Appellant submitted a series of records dated from June 3 to July 10, 2019, from
Dr. Wilson in which he provided treatment notes related to his diagnosis of an acute stress reaction
and an acute stress disorder. However, the Board finds that the evidence from Dr. Wilson does
not constitute competent medical evidence. Section 8101(2) of FECA defines the term “physician”
to include surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law.10 However,
there is no evidence that Dr. Wilson, a physician of behavior health and licensed professional
clinical counselor, is a licensed clinical psychologist, which would qualify him as a “physician” as
defined by FECA.11 For this reason, his medical evidence is of no probative value.
Similarly, appellant submitted a July 3, 2019 medical note in which Nurse Woo provided
that appellant had been receiving treatment for symptoms related to anxiety. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA.12 Consequently, Nurse Woo’s medical note will
not suffice for purposes of establishing entitlement to FECA benefits.13
As there is no medical evidence of record that establishes a medical diagnosis in connection
with the accepted employment incident, appellant has not met her burden of proof to establish an
emotional condition causally related to the accepted May 22, 2019 employment incident.
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 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
10

11

See L.H., Docket No. 18-1217 (issued May 3, 2019) (finding that licensed social workers and mental health
counselors are not considered physicians as defined by FECA).
12

Id.; see also M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians
under FECA).
13
See supra note 10; see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221 (issued
July 15, 2019).

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of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”14
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.15 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.16
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which a review is sought. Because appellant’s hearing request
was postmarked November 26, 2019, it post-dated OWCP’s October 15, 2019 decision by more
than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing
as a matter of right.17
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion.18 The Board finds that, in the December 26, 2019 decision, OWCP’s Branch of
Hearings and Review properly exercised its discretion by determining that the issue in the case
could be equally well addressed through a request for reconsideration before OWCP, along with
the submission of additional evidence.
The Board has held that the only imitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts.19 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. §§ 10.616, 10.617.

16

Id. at § 10.616(a).

17

See P.C., Docket No. 19-1003 (issued December 4, 2019).

18

Id.

19

Id.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the accepted May 22, 2019 employment incident. The Board further
finds that OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124 as
untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the December 26 and October 15, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.20
Issued: January 28, 2021
Washington, DC

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

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

20
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, KS, Employer
__________________________________________

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

Docket No. 14-1758
Issued: January 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from a June 26, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a stroke causally related to factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 5, 2014 appellant, then a 54-year-old mail carrier, filed an occupational disease
or illness claim (Form CA-2),2 alleging that he sustained a stroke on January 14, 2014 as a result
of his federal employment. The reverse of the claim form states that he returned to light duty on
February 22, 2014.
In an undated statement received on March 11, 2014, appellant stated that he had a fouryear history of hypertension and one-year history of diabetes. He alleged that on January 14,
2013 he had been casing mail for one hour when he felt a light headache and upon returning
from the restroom he lost consciousness and fell to the floor. Appellant indicated that he was
taken to the hospital and diagnosed with a stroke. He stated that he continued to experience
weakness in his left hand, shoulder and knee.
By letter dated March 28, 2014, OWCP advised appellant to submit additional factual
and medical evidence. In an April 14, 2014 statement, appellant stated that he had started the job
at the current work site on January 11, 2014. He stated that he felt tense and stressful, and “felt
under pressure and stress to complete the work at prescribed time.” According to appellant, after
the stroke he had left-side numbness and did not return to regular duty until March 26, 2014.
With respect to medical evidence, appellant submitted hospital and diagnostic test results
commencing January 14, 2014. In a report of that date, Dr. Howard Weiss, a Board-certified
neurologist, provided a history that appellant had fallen and was found on the floor with left arm
and leg weakness. He stated that the findings were consistent with an evolving cerebral infarct.
By report also dated January 14, 2014, Dr. Michael Watts, an osteopath, noted that appellant had
been found unresponsive on the floor. He indicated that appellant reported left shoulder and
neck pain, with left arm weakness. Dr. Watts diagnosed acute cerebrovascular accident (CVA)
and left shoulder pain.
In a hospital discharge summary report dated January 16, 2014, Dr. Ziana Liese, a Boardcertified family practitioner, diagnosed a transient ischemic episode, hyperlipidemia, type 2
diabetes, and hypertension. By report dated January 31, 2014, Dr. Usman Haleem, a Boardcertified internist, stated that appellant had suffered an ischemic stroke and still had left hand
numbness with left extremities weakness. He diagnosed acute ischemic stroke, hyperlipidemia,
type 2 diabetes, and hypertension. In a report dated February 14, 2014, Dr. Haleem indicated
that appellant should remain off work.
By decision dated June 26, 2014, OWCP denied the claim for compensation. It found
that appellant had not provided sufficient details with respect to work factors contributing to the
claimed condition. OWCP also found that the medical evidence did not establish a diagnosed
condition causally related to factors of federal employment.

2

An occupational disease or illness means a condition produced by the work environment over a period longer
than a single workday or shift. 20 C.F.R. § 10.5(q).

2

LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
With respect to allegations of employment factors that cause emotional stress, the evidence
must establish that the work factors are compensable. Workers’ compensation law does not apply
to each and every injury or illness that is somehow related to an employee’s employment. An
employee’s emotional reaction to his or her regular or specially assigned work duties or to a
requirement imposed by the employment is a compensable work factor. On the other hand, a
reaction to frustration over not being permitted to work in a particular environment or to hold a
particular position, or secure a promotion, are not considered compensable work factors.6
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.7 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.8
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.9
ANALYSIS
In the present case, appellant has alleged that he suffered a stroke on January 14, 2014
that was causally related to his federal employment. As noted above, a claimant must submit a
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

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factual statement that describes the employment factors that are alleged to have contributed to
the diagnosed condition. Appellant stated that he felt tense and stressful at work, and the stress
contributed to his stroke. The initial question is whether he identified compensable work factors
as causing stress. As noted above, not every alleged work factor is a compensable work factor.
The brief statement that appellant felt stress “to complete the work at prescribed time” does not
provide a sufficient description of the alleged work factor. To the extent that he is alleging an
emotional reaction to his workload, he must provide a detailed allegation or supporting
evidence.10 Appellant does not discuss his job duties or explain how the job duties caused stress.
Once a compensable work factor is established, then the medical evidence must establish
a diagnosed condition causally related to the identified employment factor. In this case the
evidence indicates that appellant suffered an ischemic stroke on January 14, 2014, but provides
no probative medical opinion as to causal relationship with his employment. Drs. Weiss, Watts,
Liese and Haleem diagnose an ischemic stroke or CVA, without discussing causal relationship.
Such an opinion would have to be based on a complete background, which in this case includes a
history of hypertension and diabetes. None of the physicians of record discuss causal
relationship between a stroke on January 14, 2014 and appellant’s employment. The Board finds
that appellant has not submitted sufficient evidence to establish an ischemic stroke as causally
related to his federal employment.
With respect to the factual evidence, the Board notes that appellant alleged that he fell to
the floor on January 14, 2014, and no contrary evidence was presented. It is not clear whether
appellant is alleging that the fall itself caused any injury. The January 14, 2014 report from
Dr. Watts noted that appellant reported left shoulder and neck pain, although Dr. Watts did not
comment on whether he felt there was an injury resulting from the actual fall to the floor. An
injury from the fall itself would raise an issue as to whether the fall was idiopathic or
unexplained. An idiopathic fall occurs when a personal, nonoccupational pathology causes an
employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of the employment.
The injury is not a personal injury while in the performance of duty as it does not arise out of a
risk connected with the employment.11 In this regard the Board notes that, if the fall was caused
by the stroke, then it is an idiopathic fall and an injury from the fall is not compensable unless
the stroke is employment related. As noted above, the evidence of record does not establish the
January 14, 2014 ischemic stroke as employment related.
It is appellant’s burden of proof to establish his claim for compensation. The factual and
medical evidence of record is not sufficient to meet appellant’s burden of proof in this case.
On appeal, appellant states that because of a work change from his previous office to the
current office he was under increased stress that led to his stroke. The evidence of record, as
explained above, does not establish a compensable work factor with respect to the claim for
compensation.
10

See Sherry L. McFall, 51 ECAB 436 (2000).

11

John R. Black, 49 ECAB 624, 626 (1998). An injury from a fall whose cause is unexplained is covered under
FECA. Id.

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a stroke causally related to factors of
his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2014 is affirmed.
Issued: January 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket Nos. 09-2358 & 10-76
Issued: August 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 28, 2009 appellant, through counsel, filed a timely appeal from the April 7
and August 5, 2009 decisions of the Office of Workers’ Compensation Programs that denied his
claim. On October 13, 2009 he filed a timely appeal from an August 28, 2009 Office decision
denying compensation from July 18 to October 29, 2006 and December 13, 2006 to
November 21, 2007. The Board has jurisdiction to review the merits of the case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for an injury to
his back and foot causally related to the employment injury of July 18, 2006; and (2) whether the
Office properly denied compensation for the periods July 18 to October 29, 2006 and from
December 13, 2006 to November 21, 2007.
On appeal, appellant, through counsel, contends that the Office’s decisions are contrary
to fact and law.

FACTUAL HISTORY
This case was previously before the Board. In an April 17, 2008 decision, the Board
found that appellant established that he cleaned tubs and walls in a restroom during the evening
of July 17, 2006. The case was remanded to the Office to determine whether he sustained an
injury due to the accepted incident. The facts of the case as set forth in the Board’s prior
decision are incorporated by reference.1
In an August 31, 2006 report, Dr. Darlington I. Hart, an attending Board-certified
internist, listed the accepted work incident and advised that appellant had back pain, arthralgia of
an unspecified site and lower extremity pain. X-rays of appellant’s foot and right hip were
normal while the lumbar spine study showed degenerative changes at L5-S1 with reduced
vertebral height. Dr. Hart advised that appellant had been under his care since August 31, 2006
and could return to work on September 11, 2006.
On August 31, 2006 Dr. Roxanne Burgess, a podiatrist, examined appellant and listed her
impressions as bilateral bunion deformity and pain. Appellant described a work injury on
July 17, 2006. Dr. Burgess advised that appellant’s bunions were a congenital bone deformity
and were aggravated by work, but not likely caused by work. She asked that he be excused from
work that day. On September 13, 2006 Dr. Burgess advised that appellant could return to work
on September 18, 2006 with the restrictions of no squatting and sedentary duty for half the
workday. She noted that his bunions were not caused by his job and it was unknown if the
activity described by appellant had aggravated his condition.
In a September 14, 2006 report, Dr. Bryan Springer, a Board-certified orthopedic
surgeon, saw appellant at the request of Dr. Hart for evaluation of right hip and back pain present
since an injury at work on July 17, 2006. He described appellant’s work underneath a sink and
discussed his symptoms. Dr. Springer reviewed appellant’s right hip x-rays and found no
evidence of degenerative changes. He recommended a magnetic resonance imaging (MRI) scan
and a clinical and physical examination for an inguinal hernia. Dr. Springer noted that appellant
had some evidence of protuberance with Valsalva-type maneuvers that cause discomfort. On
September 28, 2006 Dr. Springer noted that a recent MRI scan showed some evidence of a
paracentral disc herniation with some abutment of the left L5 nerve root with mild spondylosis
and facet osteoarthritis present.2 He suspected that appellant’s symptoms could be related to a
ventral abdominal hernia or an inguinal hernia. Dr. Springer recommended that he see a spine
doctor for a second opinion regarding his back. Most of appellant’s disc symptoms appeared to
be on the left side but he also had some facet arthrosis and degenerative changes at multiple
levels in the lumbar spine without significant evidence of central canal stenosis. On October 16,
2006 Dr. Springer advised that appellant’s right hip shows no untoward evidence of limitations

1

Docket No. 07-2147 (issued April 17, 2008). Appellant, a 53-year-old housekeeping aid, claimed traumatic
injury to his feet and side on July 17, 2006 while cleaning a restroom.
2

The September 25, 2006 MRI scan study was interpreted by Dr. Kevin Carroll, a Board-certified radiologist, as
showing a left paracentral disc bulge at L4-5 contacting the left L5 nerve root with mild bilateral neuroforaminal
narrowing; and mild spondylosis and facet osteoarthritis without additional foci of neural compromise.

2

on rotation or pain with any type of motion. Appellant had tenderness along the mid to lower
lumbar region with normal neurological and vascular examinations.
On October 11, 1006 appellant was treated by Dr. James A. Watkins, a Board-certified
surgeon, who diagnosed a moderate-sized work-related right inguinal hernia. In an October 23,
2006 note, Dr. Watkins advised that appellant would be taken off work from October 23, 2006
until surgery. On October 30, 2006 he performed an open right inguinal hernia repair. On
November 14, 2006 Dr. Watkins addressed appellant’s status post surgery and indicated that he
would be able to return to work on December 13, 2006. He subsequently advised that appellant
would be able to return to work on January 2, 2007. On December 12, 2006 Dr. Watkins noted
that appellant was doing better and healing well.
Dr. James Alexander, a Board-certified physiatrist, completed reports dated
November 15, 2006 through February 27, 2007. He diagnosed right-sided low back and buttock
pain which appellant attributed to the July 17, 2006 work incident. Dr. Alexander noted that
diagnostic testing showed an L4-5 broad-based disc bulge and bilateral foraminal narrowing,
facet degeneration and L5-S1 mild degenerative changes of the facets, which were preexisting
conditions with no evidence of acute injury on July 17, 2006. On November 21, 2007 he
diagnosed lumbar pain and checked a box to indicate that the condition was work related.
Dr. Alexander advised that appellant could return to work without restriction on
November 21, 2007.
On January 3, 2008 Dr. Burgess diagnosed a bunion. She noted that appellant stated the
bunion was irritated while performing job-related duties.
In a January 7, 2008 attending physician’s report, Dr. Watkins diagnosed a right inguinal
hernia. In response to the form question of whether the diagnosed condition was related to the
employment activity, he wrote, “Possibly -- but we did not see patient until October 9, 2006.”
Dr. Watkins listed appellant’s period of total disability as October 9, 2006 through January 2,
2007 with partial disability from January 2 through 16, 2007.
The record reflects that on May 2, 2008 the Office accepted appellant’s claim for a right
inguinal hernia.
In a September 15, 2008 report, Dr. Watkins reiterated that he initially evaluated
appellant on October 9, 2006. Appellant stated that he developed pain and discomfort while at
work doing work-related activities. On examination, Dr. Watkins found a reducible right
inguinal hernia and he performed surgical repair on October 30, 2006. In a November 4, 2006
postoperative evaluation, appellant complained of pain shooting down into his foot and toes; and
as of December 12, 2006, he complained of some discomfort but was healing nicely.
Dr. Watkins advised appellant to stay off work for several more weeks and to return if necessary.
On January 28, 2009 appellant submitted a claim for wage-loss compensation for
intermittent disability commencing July 18, 2006.
In a March 19, 2009 decision, the Office found that appellant was entitled to
compensation following his surgery from November 6 to December 12, 1006. It denied
compensation from July 18 through October 27, 2006 and after December 12, 2006 as the
3

medical evidence established treatment for his back and feet, conditions not accepted as related
to the July 17, 2006 injury.
On March 26, 2009 appellant requested a hearing before an Office hearing representative.
In an April 7, 2009 decision, the Office denied appellant’s claim for his foot and back
conditions, finding the medical evidence was not sufficient to establish they were related to the
July 17, 2006 injury.
On April 13, 2009 appellant requested a hearing with regard to the April 7, 2009
decision.
A hearing was held on June 8, 2009 with regard to the March 19, 2009 decision. A
June 16, 2009 hearing was held on the April 7, 2009 decision. No further evidence was
submitted.3
In an August 5, 2009 decision, an Office hearing representative affirmed the April 7,
2009 decision denying appellant’s claim for his bilateral foot and low back conditions.
In a decision dated August 28, 2009, an Office hearing representative modified the
March 19, 2009 decision to find appellant entitled to wage-loss compensation from October 30
through December 12, 2006. She affirmed the denial of compensation from July 18 to
October 29, 2006 and December 13, 2006 to November 21, 2007.
LEGAL PRECEDENT -- ISSUE 1
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; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related the employment factors identified by the claimant.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5

3

On July 1, 2009 the Office approved leave buy back from October 30 through November 3, 2006.

4

D.I., 59 ECAB __ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a right inguinal hernia causally related to his
July 17, 2006 work injury. However, it found that his bilateral foot and low back conditions
were not related to the work injury.
The Board finds that appellant has not submitted sufficient medical evidence on causal
relationship to establish a bilateral foot or low back condition arising from the July 17, 2006
injury at work.
The Office accepted a right inguinal hernia based on the reports of Dr. Watkins who
treated appellant and performed surgery on October 30, 2006. The reports of Dr. Watkins do not
provide any opinion addressing the relationship of appellant’s foot symptoms or low back
complaints to the July 17, 2006 work injury. Therefore, these reports are not relevant to
establishing this aspect of appellant’s claim.
Dr. Hart treated appellant for back pain, arthralgia at an unspecified site and lower
extremity pain. He obtained x-rays of appellant’s right foot and hip, which he advised were
normal. X-rays of the low back showed degenerative changes involving the lumbar spine.
Dr. Hart advised that appellant was able to return to work as of September 11, 2006 but provided
no opinion explaining how the findings pertaining to appellant’s foot, right hip or lumbar spine
related to the July 17, 2006 injury. This evidence is not sufficient to establish appellant’s claim.
Dr. Springer treated appellant at the request of Dr. Hart for evaluation of right hip and
low back pain present since the incident at work on July 17, 2006. He reviewed diagnostic
studies of the right hip that did not evidence any degenerative disease. Based on his clinical
examination, Dr. Springer noted that appellant’s symptoms were possibly due to inguinal hernia.
He also reviewed an MRI scan that revealed disc herniation at L5 with spondylosis and facet
osteoarthritis. Dr. Springer recommended that appellant be seen by a surgeon for treatment of
the hernia and by a spine specialist regarding the low back. He failed to provide an opinion
addressing the issue of causal relationship. Although Dr. Springer noted a history of appellant’s
July 17, 2006 injury, he did not explain how appellant’s work that evening would cause or
contribute to the conditions for which he was treated. This evidence is not sufficient to establish
that appellant sustained injury beyond the accepted hernia.
Dr. Alexander checked a box indicating that appellant’s lumbar pain was work related. It
is well established, however, that a physician’s opinion that consists of a checkmark on a form
report is of diminished probative value.6 Dr. Alexander did not provide a narrative opinion
addressing how the accepted injury would cause or contribute to appellant’s low back symptoms
or diagnosed degenerative disease. He initially noted that appellant’s back condition was a
preexisting condition with no evidence of an acute injury on July 17, 2006, but never further
explained this aspect of his reports. This reduces the probative value of his medical opinion.
Dr. Burgess treated appellant and diagnosed a bilateral bunion condition which she
described as a congenital bone deformity. She noted that appellant’s job could have aggravated
6

See Cecelia M. Corley, 56 ECAB 662 (2005).

5

his bunions but that they were not caused by his work. Subsequently, Dr. Burgess reiterated that
appellant’s bunions were not caused by his job and stated that it was unknown if the work
activity described by him had aggravated his condition. Her reports are equivocal on the issue of
causal relation and speculative in explaining that his work could have aggravated his condition.
Dr. Burgess’ reports are not sufficient to establish that appellant’s bunion condition was caused
or contributed to by his accepted injury.
An award of compensation may not be based on surmise, conjecture, speculation or a
claimant’s own belief of causal relationship.7 The medical evidence of record is not sufficient to
establish that appellant sustained an injury to his low back or feet causally related to his July 17,
2006 injury. Accordingly, the Board finds that appellant failed to meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury.8 The Board will not require the Office to pay compensation in
the absence of medical evidence directly addressing the particular period of disability for which
compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.9
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving he was disabled on particular
dates requires that he furnish medical evidence from a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disabling condition is causally
related to the employment injury and supports that conclusion with medical reasoning.10 Where
no such rationale is present, the medical evidence is of diminished probative value.11
ANALYSIS -- ISSUE 2
As noted, the Office accepted appellant’s claim for a right inguinal hernia for which he
underwent surgery on October 30, 2006. It paid wage-loss compensation from that day to
December 12, 2006, the date of a treatment note from Dr. Watkins. The Board finds that the
period of appellant’s disability related to his inguinal surgery extended through January 2, 2007,
the date Dr. Watkins advised that he was no longer totally disabled.
The Office apparently relied on the December 12, 2006 treatment note when Dr. Watkins
advised that appellant was doing well postsurgery and was healing. Dr. Watkins, however, did
7

John D. Jackson, 55 ECAB 465 (2004).

8

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

9

Fereidoon Kharabi, supra note 8.

10

Ronald E. Eldridge, 53 ECAB 218 (2001).

11

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

6

not make a finding that appellant was released from care or no longer had disability related to the
accepted hernia condition. Rather, on January 7, 2007 he advised that the period of total
disability extended through January 2, 2007. Thereafter, on September 15, 2008 Dr. Watkins
reiterated that on December 12, 2006 appellant still had discomfort following surgery for which
he kept appellant off for several more weeks. Based on the medical evidence from appellant’s
attending surgeon, the Board finds that the period of disability related to surgery for the accepted
hernia condition extended through January 2, 2007.
With regard to the period July 18 through October 29, 2006 and after January 3, 2007, the
medical evidence does not establish that appellant had disability for work due to his accepted
hernia condition. In this regard, the reports of Dr. Watkins do not address appellant’s total
disability prior to the date surgery was performed on October 30, 2006. He completed several
form reports, but did not address how appellant was disabled due to the right inguinal hernia
condition prior to surgery.
Further, the remaining medical evidence of record addressing intermittent periods of
disability does not relate appellant’s incapacity for work to his accepted hernia condition.
Dr. Hart only noted that appellant had been under his care since August 31, 2006 and could
return to work on September 11, 2006. He did not treat appellant for his hernia condition or
relate his disability to the accepted injury in this case. Dr. Burgess only discussed appellant’s
bunion condition, again not accepted by the Office as employment related. The Board will
affirm Office’s denial of wage-loss compensation from July 18 through October 29, 2006 and
commencing January 3, 2007.
CONCLUSION
The Board finds that appellant did not establish that he sustained injury to his feet or low
back due to the July 17, 2006 injury. The Board finds that the period of disability related to his
accepted hernia condition was October 30, 2006 to January 2, 2007. Finally, appellant did not
establish his disability from July 18 through October 29, 2006 and from January 3, 2007 as
related to his accepted hernia condition.

7

ORDER
IT IS HEREBY ORDERED THAT the August 5 and April 7, 2009 decisions of the
Office of Workers’ Compensation Programs be affirmed. The Office’s August 28, 2009 decision
is affirmed as modified to reflect that appellant is entitled to compensation from October 30,
2006 through January 2, 2007.
Issued: August 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
L. Prentice Eager, III, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2166
Issued: April 16, 2007

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On September 26, 2006 appellant filed a timely appeal from a July 11, 2006 decision of
the Office of Workers’ Compensation Programs that affirmed termination of her medical and
compensation benefits as of January 6, 2004 and denied compensation benefits for continuing
disability and residuals.. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2) the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 6, 2004; and (2) whether appellant has established that
she has any continuing disability or residuals causally related to the December 16, 1999
employment injury.

FACTUAL HISTORY
Appellant, a 34-year old Christmas casual worker, filed a traumatic injury claim on
December 16, 1999 alleging that on that date, she injured her right knee and low back when she
was struck in the back by a tug towing a CNET “igloo” which knocked her into another tub
causing her to fall on the ground thereby striking her right knee. The Office accepted appellant’s
claim for right knee strain/contusion and low back strain.
Appellant received treatment from Dr. Ish A. Kahn, a Board-certified orthopedic surgeon,
who on March 27, 2000 released her to her regular duties, noting that she suffered from a
nonjob-related left knee problem. Dr. Kahn indicated on appellant’s work tolerance limitations
form that the restrictions due to arthritis were nonwork related and that the effects of her injury
had resolved.
By decision dated August 23, 2000, the Office terminated appellant’s compensation and
medical benefits. In a decision dated April 12, 2001, the hearing representative affirmed the
termination of benefits but remanded the case for further development of the evidence on the
issue of compensation after the termination of benefits based on evidence submitted at the
hearing.
Appellant began to see Dr. Joseph N. Saba, a Board-certified psychiatrist and neurologist,
on June 20, 2000. At that time Dr. Saba assessed her with soft tissue injury to the low back
solely as a result of the injury of December 16, 1999. He also noted a preexisting headache and
neck condition, overweight state and injuries to her knees which were currently under the care of
an orthopedic surgeon.
On June 29, 2001 the Office referred appellant to Dr. Robysina James, a Board-certified
orthopedic surgeon, for a second opinion. In a medical report dated July 16, 2001, Dr. James
found that, based on his review of the medical records and physical examination appellant’s back
problem was not related to the work injury of December 16, 1999. He noted that there was
nothing in the medical record indicating that she sought treatment for her back after her
December 18, 1999 emergency room visit until 7 months later at which point appellant’s low
back problem had resolved. Dr. James found that, upon examination of appellant’s right knee,
the objective findings are patella-femoral arthritis and patella tendinitis. He opined that
appellant’s right knee injuries were not related to her work injury and that her obesity was a
predisposing factor for both chronic low back pain and knee pain.
In a report dated November 8, 2001, Dr. Saba stated that appellant had 100 percent
disability because of her chronic pain syndrome resulting from the injury of December 16, 1999.
In a decision dated August 1, 2001, the Office denied appellant’s claim for continuing
employment-related disability on the grounds that the medical evidence was insufficient to
establish her claim. By decisions dated March 11, 2002 and April 3, 2003, the Office denied
modification of its August 1, 2001 decision. By decision dated August 25, 2003, the Office
determined that a conflict existed between the reports of appellant’s treating physician, Dr. Saba,
and the second opinion physician, Dr. James, with regard to whether appellant had any
continuing residuals from the December 16, 1999 employment injury and set aside Office

2

decisions dated August 1, 2001, March 11, 2002 and April 3, 2003. Accordingly, the Office
referred appellant to an impartial medical examiner to resolve the conflict in opinions.
In a medical report dated May 7, 2002, Dr. Saba noted that, whereas appellant’s obesity
makes it harder for her to recover from soft tissue injuries, it is not the cause of her soft tissue
injury. In a report dated August 25, 2003, he indicated that he explained to appellant that being
overweight did not cause her back problem but would make it more difficult for her to recover
from her injuries. Dr. Saba noted that on examination, appellant complained of pain radiating to
her lower extremities, especially in the left. Appellant had sensory loss about the left L5
distribution and her left ankle jerk is depressed. Dr. Saba noted that she had tenderness in her
low back. He further noted that the presence or absence of muscle spasm in the low back could
not be determined as a result of the thickness of the subcutaneous tissues.
By letter dated September 8, 2003, the Office referred appellant to Dr. Harold H.
Alexander, a Board-certified orthopedic surgeon, for an impartial medical examination in order
to resolve the conflict regarding whether appellant had any continuing injury-related condition or
disability. In a medical report dated September 25, 2003 Dr. Alexander stated:
“On the basis of the present findings, it would appear that [appellant] has had an
acute lumbosacral sprain and contusion as the original injury and I believe this is
for the most part resolved. Any pain that she is having now, likely is related to
degenerative dis[c] disease and not related to the work injury. There are
physically no objective findings on physical [relationship] to nerve root irritation.
I do not believe any further studies are needed.
“In answer to the questions posed to the second opinion examiner: [Appellant’s]
current diagnosis of the right knee is likely mold chondromalacia and
[degenerative disc disease] LS spine. These are not related to the work injury of
[December 16, 1999). [A magnetic resonance imaging] MRI [scan] of the spine
and an MRI [scan] of the knee and physical exam[ination] reveal no evidence of
nerve root compression, dis[c] herniation or internal derangement of her right
knee.
“[Appellant] will continue to have residuals from her right knee strain and the
contusion of her low back strain. There are no other nonwork[-]related conditions
causing disability. There was one reference to arthritis in [appellant’s] left knee,
but I do not have x-rays of this. She does have excellent [range of motion] of her
left knee without effusion or ligamentous instability. I have a feeling [that
appellant] could return to a four[-]hour work week in a light[-]duty capacity and
eventually over a two[-]month period, return to an eight[-]hour
light[-]duty ]capacity. Beyond that, it would remain to be seen how she does.
[Appellant] could work up to a moderate capacity, which she was doing previous
to her injury.”

3

By letter dated October 15, 2003, the Office asked Dr. Alexander to clarify his
September 25, 2003 report. In a report dated October 15, 2003, Dr. Alexander stated:
“Based on current objective evidence, [appellant] does not have residuals from the
accepted work-related conditions of her right knee strained contusion and her low
back strain. The pain she is having is treated in the next to last paragraph of my
original note, is related to chondromalacia and degenerative dis[c] disease of her
lumbosacral spine, preexisting conditions. I was in error when I stated [that
appellant] will continue to have residuals from her right knee strain and contusion
of her low back. It should have read that she will continue to have pain in her
right knee and low back due to preexisting degenerative dis[c] disease and
chondromalacia.”
In a medical report dated October 27, 2003, Dr. Saba assessed appellant with soft
tissue injury to the low back, chronic cervical syndrome, chronic strain of the knee,
chronic pain syndrome and morbid obesity.
On October 29, 2003 the Office proposed to terminate appellant’s wage-loss and medical
compensation.
In a report dated November 6, 2003, Dr. Saba stated that appellant had a “significant
bilateral disc herniation at the L4-5 level with a bias to the left and a right L5 radiculopathy.”
In a medical report dated November 21, 2003, Dr. William L. Yarde, reviewed
appellant’s computerized axial tomography (CAT) scan of October 13, 2003 and assessed
appellant with “lumbar radiculopathy secondary to herniated nucleus pulposus. He noted that
most of appellant’s symptoms were in her right side and the CAT scan showed a left-sided lesion
at two levels, that is L3-4 and L4-5.
On January 2, 2004 appellant requested reconsideration.
By decision dated January 6, 2004, the Office terminated appellant’s medical and wageloss benefits effective that date. On January 12, 2004 appellant requested an oral hearing before
an Office hearing representative. This was later changed to a request for review of the written
record.
In a medical report dated January 29, 2004, Dr. Saba reiterated that “within a reasonable
degree of medical certainty appellant’s injury to the low back that she suffered on the job is the
cause of the disc herniation. He explained that her back was normal before December 16, 1999,
that on December 16, 1999 when appellant was hit in the back, she twisted and was knocked
down to the ground on her knees and went to southern regional where she received treatment.
Dr. Saba noted that he had been treating appellant since June 2000 and had done numerous tests
which showed disc herniations.
In a medical report dated March 15, 2004, Dr. Saba reiterated his opinion that appellant’s
problems were related to her injury of December 1999 and that her disc herniation was post
traumatic.

4

By decision dated May 31, 2005, the hearing representative affirmed the January 6, 2004
Office decision.
On May 16, 2006 appellant requested reconsideration.
In a May 11, 2006 affidavit answering questions, Dr. Saba confirmed that he began
treating appellant on June 20, 2000 and was still treating her, that she has been diagnosed with
bilateral disc herniations at L4-5 with right L5 radiculopathy and that her current injury to her
lower back was causally related to her December 16, 1999 employment injury because
appellant’s low back was normal before that time. In an affidavit dated April 26, 2006, appellant
stated that she was injured on the job on December 16, 1999 and that she was in constant pain in
her low back with radiating pain down both legs, burning in both feet and tingling and burning in
her toes. She also noted that she was experiencing problems with urination and balance as a
result of her back problems. Appellant also stated that she was unable to sit or stand for any
length of time.
By decision dated July 11, 2006, the Office denied modification of its January 6, 2004
decision on the basis that the evidence submitted was insufficient to establish the contention that
the work-related medical condition had not resolved.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.2
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, the Office must
establish that the employee no longer has residuals of an employment-related condition, which
require further medical treatment.3
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background must be given special weight.4

1

Harold S. McGough, 36 ECAB 332 (1984).

2

Vivien L. Minor, 37 ECAB 541 (1986).

3

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

4

James P. Roberts, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

5

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a right knee strain/contusion and low back
strain as a result of her December 16, 1999 injury. Therefore, it has the burden of proof to justify
the termination of compensation and medical benefits for that condition. In this case, the Office
terminated appellant’s compensation and medical benefits based on the report of Dr. Alexander,
the impartial medical examiner. The Board finds that the Office met its burden of proof to
terminate appellant’s compensation benefits.
Dr. Saba, appellant’s treating physician, repeatedly indicated that appellant’s low back
condition was causally related to her December 16, 1999 employment injury. In his
November 8, 2001 report, Dr. Saba indicated that appellant was 100 percent disabled due to her
chronic pain syndrome resulting from the injury of December 16, 1999. However, Dr. James,
the physician to whom the Office referred appellant for a second opinion, stated that appellant’s
back problem and condition in her right knee were not related to her work injury and that her
obesity was a predisposing factor for both the chronic low back and knee pain. Due to the
conflict between appellant’s treating physician, Dr. Saba and the second opinion physician,
Dr. James, with regard to whether appellant had any continuing residuals from the December 16,
1999 employment injury, the Office properly referred appellant to Dr. Alexander for an impartial
medical opinion. In his medical report dated September 25, 2003, Dr. Alexander stated that
appellant had an acute lumbosacral sprain and contusion from the original injury which he
believed had now resolved. He opined that any pain she is having now is related to degenerative
disc disease and not related to the work injury. Dr. Alexander also noted that appellant’s current
condition in her right knee, most likely mold chondromalacia, was not related to the work injury
of December 16, 1999. In response to questions from the Office, in a supplemental report dated
October 15, 2003, Dr. Alexander stated that appellant did not have residuals from the accepted
work-related conditions of her right knee strained contusion or her low back strain and that any
pain appellant was currently suffering was due to her chondromalacia and degenerative disc
disease of her lumbosacral spine, preexisting conditions. Where a case is referred to an impartial
medical examiner, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.5 The Board finds that the
special weight of the medical evidence is represented by the through, well-rationalized opinion
of the impartial medical examiner, Dr. Alexander.
LEGAL PRECEDENT -- ISSUE 2
If the Office meets its burden to terminate the claimant’s compensation benefits, the
burden shifts to appellant to establish that he had continuing disability causally related to his
accepted employment injury.6 To establish a causal relationship between the condition, as well
as any disability claimed, and the employment injury, the claimant must submit rationalized
medical opinion evidence based on a complete factual background, supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
5

Richard O’Brien, 53 ECAB 234, 241-42 (2001).

6

Manuel Gill, 52 ECAB 282 (2001); George Servatas, 43 ECAB 424, 430 (1992).

6

claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS -- ISSUE 2
Dr. Saba’s reports following the termination do not establish that appellant has
continuing employment-related disability or residuals. He has not provided sufficient support for
his opinion that the work injury caused or contributed to appellant’s herniated lumbar discs in
view of the fact that there was no diagnostic testing confirming this diagnosis until
October 13, 2003. Moreover, Dr. Saba’s conclusion that appellant’s disc herniation was
employment related because it was not in existence prior to the December 16, 1999 employment
injury is of diminished probative value without more by way of an explanation as to how the
mechanism of the employment injury caused the herniation.
As appellant has not presented any rationalized medical evidence establishing that she
has continuing employment-related disability or residuals causally related to the December 16,
1999 employment injury, she has failed to meet her burden of proof.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 6, 2004. The Board further finds that appellant did not
establish continuing disability or residuals causally related to the December 16, 1999
employment injury.

7

See Connie Johns, 44 ECAB 560 (1993).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2006 is affirmed.
Issued: April 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 12-859
Issued: September 7, 2012

Case Submitted on the Record

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

JURISDICTION
On March 7, 2012 appellant filed an appeal from a January 19, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on June 8, 2010 caused by the accepted lumbar radiculitis.
FACTUAL HISTORY
On March 4, 2010 OWCP accepted that appellant, then a 47-year-old computer assistant,
sustained lumbar radiculitis on February 9, 2010 when an elevator suddenly dropped. Appellant
stopped work on Friday, February 12, 2010. A March 2, 2008 magnetic resonance imaging
1

5 U.S.C. §§ 8101-8193.

(MRI) scan of the lumbar spine showed mild-to-moderate degenerative disc disease at T11-12
with no disc herniation, stenosis or foraminal encroachment and mild scoliosis. A February 15,
2010 pelvis x-ray demonstrated mild degenerative changes. A February 12, 2010 lumbar spine
MRI scan revealed a small disc protrusion at T10-11, disc bulges at T11-12 and L4-5 and a
posterior disc bulge at L5-S1 with facet arthropathy. On March 5, 2010 OWCP assigned a
medical management nurse to assist in appellant’s recovery. Appellant received appropriate
continuation of pay and compensation beginning April 1, 2010.
In an April 9, 2010 work capacity evaluation, Dr. Vincent G. Johnson, an osteopath
Board-certified in anesthesiology and pain medicine, advised that appellant could return to work
in two weeks if she progressed to the point where she could stand/sit two to four hours at a time.
In a treatment note dated April 22, 2010, he advised that she had been attending physical
therapy.
Dr. Johnson provided physical examination findings and diagnosed lumbar
radiculopathy historically, symptoms improved, myofascial type pain and possible component of
some right degenerative joint disease. He advised that appellant could return to work, to start at
two half days a week for the first week, three half days the second week, gradually working into
full-time work at the end of four weeks. An April 22, 2010 right hip x-ray demonstrated no
acute osseous abnormality.
Appellant returned to limited duty for four hours a day on April 26, 2010.2 She worked
two four-hour days the first week, three four-hour days the second week and was to begin five
four-hour days the third week or on May 10, 2010. An amended time analysis form dated July 6,
2010 indicated that appellant worked half days May 10, 11, 12 and 14, 2010 and called in sick
due to pain May 13 and 17 to 21, 2010. She was on leave the week of May 24, 2010 and worked
four hours on June 2, one hour on June 3 and four hours on June 4, 2010.
In a May 19, 2010 report, Dr. Glenn M. Amundson, a Board-certified orthopedic
surgeon, noted the history of injury. He diagnosed chronic muscular ligamentous strain and
recommended MRI scan and electrodiagnostic studies. On June 1, 2010 Dr. Johnson noted that
appellant had been treated with epidural injections. He noted the electromyogram (EMG)
findings, stating that they were compatible with a very mild, healed old lumbar radiculopathy.
Dr. Johnson diagnosed symptomatic lumbar radiculopathy and myofascial pain, both relatively
resolved “in a patient who has ongoing subjective pain.” A June 1, 2010 right lower extremity
EMG study demonstrated very mild chronic right L5 lumbar radiculopathy, with no acute or
subacute process noted. On a duty status report, also dated June 1, 2010, Dr. Johnson advised
that if the EMG study was negative, appellant could return to work for four hours a day for two
weeks, then to full duty. A June 9, 2010 lumbar spine MRI scan study noted that, when
compared with the earlier examination, the herniated disc at T11-12 was not appreciated and
there was a redemonstration of diffuse bulging at L4-5 and L5-S1.
On June 11, 2010 Dr. John Verstraete, an osteopath and a Board-certified internist,
advised that due to pain, appellant was excused from work until further notice. In reports dated
2

The physical requirements of the modified position were described as sitting in a chair, working on a desktop
computer intermittently, not to exceed four hours a day, with the terminal at eye level. There was no reaching above
shoulder level. Walking short distances on an intermittent basis was required, not to exceed one hour a day, with
intermittent bending, stooping, lifting, pulling and pushing limited to one-hour a day with a 10-pound weight
restriction. Appellant was allowed to sit or stand at her convenience.

2

June 17, 2010, Dr. Johnson noted her complaint of continued radiating low back pain. He
reviewed the objective studies with appellant and advised that she could not return to work until
she had a functional capacity evaluation (FCE).
By letter dated June 25, 2010, OWCP noted that appellant stopped work on or around
June 8, 2010 and advised her of the evidence needed to establish a recurrence of disability.
A July 1, 2010 FCE demonstrated that appellant did not perform near to her best ability.
She displayed significant deconditioning with pain and guarding through the activities but
demonstrated the ability to perform sedentary work.
Appellant received wage-loss compensation for four hours a day through May 23, 2010.
On July 8, 2010 she filed a claim for compensation for the period June 21 to July 4, 2010.
On July 12, 2010 Dr. Johnson noted appellant’s complaint of exquisite, disabling pain
that prevented her from working. He advised that he had reviewed the FCE which suggested
poor patient compliance and discussed the findings with her, who maintained that she could not
work due to pain. Dr. Johnson also reviewed the MRI scan and EMG findings, stating that he
found no objective evidence for appellant’s pain and discharged her from his care. In a second
July 12, 2010 report, he answered OWCP questions, stating that objective evidence was
equivocal for right leg radiculopathy, and that she told him she could not work, even four hours a
day, due to pain. Dr. Johnson also provided a duty status report in which he advised that
appellant could return to work with restrictions but noted that she stated she was unable to work
due to pain.
In a July 16, 2010 letter, OWCP advised appellant that she needed to submit medical
evidence supporting total disability before compensation could be granted for the claimed wage
loss for June 21 to July 4, 2010. Appellant submitted additional claims for compensation.
In an August 4, 2010 report, Dr. Amundson reviewed the EMG and June 9, 2010 MRI
scan. Regarding the latter, he advised that he reviewed the study carefully and found no
evidence of significant nerve root impingement, and asked another physician to review the study,
who agreed that there was no evidence of nerve root encroachment. Dr. Amundson advised that
appellant was not a surgical candidate and should remain off work for four weeks because she
needed reconditioning. He indicated that physical therapy and work hardening was the most
appropriate measure and recommended that she be seen by Dr. Steven Hendler, a Board-certified
physiatrist. Appellant did not keep a scheduled appointment with Dr. Hendler.
In an August 6, 2010 report, Dr. Verstraete noted that he saw appellant on February 15,
2010, shortly after the work injury, and she had consistent complaints of unrelenting pain. He
did not believe she was malingering or that she could tolerate physical therapy or an FCE due to
pain exacerbation. Dr. Verstraete concluded that work hardening would be detrimental to
appellant.
OWCP referred appellant to Dr. Edward J. Prostic, Board-certified in orthopedic surgery,
for a second-opinion evaluation. In an August 13, 2010 report, Dr. Prostic described the history
of injury and appellant’s complaint of radiating back pain, worsened with most activity. He
provided examination findings, noting that she had a cane and walked with an antalgic gait.
Appellant had tenderness of the lumbosacral junction and limited lumbar range of motion.
3

Straight leg examination was negative, both seated and supine. No weakness was noted, and
sensation was satisfactory. Dr. Prostic reviewed the June 9, 2010 MRI scan study and advised
that a pelvis x-ray that day demonstrated no abnormality on the right and cysts about the left
femoral head and neck. In answer to specific OWCP questions, he advised that a decrease in
circumference of the right calf as compared to the left and the EMG findings gave some support
to a diagnosis of right radiculopathy, but that the need for a cane, the minimal abnormalities on
MRI scan, the poor range of motion and the lack of improvement with time and treatment
suggested symptom magnification. Dr. Prostic recommended psychometric testing to rule out
depression, hypochondriasis and/or hysteria and a gentle but increasing exercise program,
indicating that if the psychometric testing was within normal limits, computerized tomography
(CT) myelography could be performed to see if there was a surgically correctable condition. He
advised that there were no objective findings that demonstrated a material change or worsening
in the accepted condition which rendered her totally disabled for all work activity.
In reports dated September 13, 14 and 15, 2010, Dr. Verstraete noted examining
appellant on September 13, 2010 and treating her for a number of years. He advised that he
referred her to pain management for consultation and treatment only, stating, “like all
consultations, the consulted physician is expected to provide an opinion and aid in treatment but
not necessarily take over total care of the patient thus disregarding the original treating
physician.” Dr. Verstraete advised that he had seen appellant multiple times when her pain was
exacerbated by trying to work, by physical therapy and by the FCE and that her pain from the
work injury was constant and unrelenting. He opined that she had nerve root damage due to the
employment injury, as supported by MRI scan findings, abnormal neurological tests and clinical
findings of persistent abnormal reflexes, positive straight leg tests and obvious progressive
muscle wasting. Dr. Verstraete stated that the work injury resulted in appellant’s total disability,
in part due to what appeared to be a manipulative workers’ compensation case worker who lied
to appellant. He stated that, although he valued Dr. Johnson’s opinion, he did not agree with his
findings, “especially when his reports appeared to be influenced,” indicating that Dr. Johnson
was not treating appellant’s pain effectively. Dr. Verstraete reviewed Dr. Prostic’s report, and
disagreed with his opinion about the EMG findings and his characterization of symptom
magnification, opining that appellant was not a malingerer.
An October 14, 2010 lumbar myelogram was unremarkable. A postmyelogram CT scan
showed no significant disc bulge, canal stenosis or foraminal narrowing at any level. On
October 25, 2010 Dr. Prostic reviewed the CT myelogram and FCE results. He advised that
there was no objective evidence of a surgically correctable lesion in the low back and no
objective evidence that permanent injury occurred due to the February 9, 2010 employment
injury. Dr. Prostic indicated that additional physical treatment was unlikely to be beneficial,
stating that appellant was more likely to respond to treatments that were oriented toward an
abnormal psychological response to the February 9, 2010 incident.
In a decision dated October 27, 2010, OWCP denied appellant’s claim for wage-loss
compensation for the period June 21 through July 11, 2010, finding that the weight of the
medical evidence rested with Dr. Johnson for the period of claimed disability.
On November 5, 2010 Dr. Prostic advised that he had reviewed Dr. Verstraete’s reports
and disagreed with his opinion. He stated that his opinion remained as previously reported.

4

Appellant, through her attorney, timely requested a review of the written record of the
October 27, 2011 decision.3
By decision dated January 14, 2011, OWCP denied appellant’s claim that she sustained a
recurrence beginning June 8, 2011 on the grounds that the medical evidence did not establish that
she was totally disabled from work due to the accepted condition. Appellant timely requested a
review of the written record.
On January 21, 2011 Dr. Verstraete reiterated his disagreement with Dr. Prostic’s
opinion. He maintained that the CT myelogram results were 80 percent accurate and reiterated
that appellant had nerve root damage as a direct result of the February 9, 2010 employment
injury, was in constant pain and was totally disabled.
In a March 17, 2011 decision, OWCP’s hearing representative affirmed the October 27,
2010 decision finding that appellant was not entitled to wage-loss compensation for the period
June 21 through July 11, 2010. In a May 16, 2011 decision, he affirmed the January 14, 2011
decision, finding that she did not establish that she sustained a recurrence of disability on
June 8, 2010.
On October 18, 2011 appellant requested reconsideration of the May 16, 2011 OWCP
decision.4 She argued that Dr. Prostic was biased and his opinion should not be used. Appellant
submitted a July 27, 2011 report in which Dr. Verstraete discussed her care, treatment and
objective studies. Dr. Verstraete advised that, although she had a 2008 episode of low back pain,
it quickly resolved and she had no additional back problems until the February 9, 2010 work
injury. He provided examination findings, noting positive straight leg raising and that
appellant’s right calf was nearly one inch smaller than the left. Dr. Verstraete opined that she
had persistent nerve root damage and was totally disabled.
In a merit decision dated January 19, 2012, OWCP denied modification of the May 16,
2011 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical

3

The attorney initially requested a hearing and on January 25, 2011 changed the request to a review of the written
record.
4

Appellant initially requested reconsideration of the March 17, 2011 decision, but changed the request to reflect a
reconsideration request of the May 16, 2011 decision.
5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements.7
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability on
June 8, 2010 causally related to the accepted lumbar radiculitis because she did not establish that
the nature and extent of her injury-related condition changed so as to prevent her from
continuing to perform her limited-duty assignment.
A partially disabled claimant who returns to a light-duty job has the burden of proving
that he or she cannot perform the light duty, if a recurrence of total disability is claimed.8 The
issue of whether an employee has disability from performing a modified position is primarily a
medical question and must be resolved by probative medical evidence.9 A claimant’s burden
includes the necessity of furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.10
On April 22, 2010 Dr. Johnson, an attending pain management specialist, advised that
appellant could return to work, with a gradual progression to full-time work by the end of the
fourth week. Appellant returned to a modified position on April 26, 2010.11 She stopped work
in early June 2010 and filed claims for wage-loss compensation. While Dr. Johnson
recommended that she remain off work until after an FCE, this was completed on July 1, 2010
and was invalid due to poor effort on appellant’s part. Nonetheless, the FCE indicated that
appellant could perform sedentary work. On July 12, 2010 Dr. Johnson reviewed a June 1, 2010
EMG study that demonstrated very mild, chronic L5 lumbar radiculopathy with no acute or
subacute process. He also discussed lumbar MRI scan findings and advised that there was no
objective evidence for appellant’s reported severe pain that kept her from work. Dr. Johnson
dismissed her from his care.

6

Id.

7

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

8

See William M. Bailey, 51 ECAB 197 (1999).

9

Cecelia M. Corley, 56 ECAB 662 (2005).

10

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

11

Supra note 3.

6

Dr. Amundson, an attending orthopedic surgeon, first saw appellant on May 19, 2010
when he diagnosed chronic muscular ligamentous strain. On August 4, 2010 he reviewed the
EMG study and June 9, 2010 MRI scan study which, he opined, demonstrated no significant
nerve root encroachment. While Dr. Amundson advised that appellant should remain off work
for four weeks so that she could complete work hardening with Dr. Hendler, appellant did not
attend the scheduled work-hardening appointment.
In an August 13, 2010 report, Dr. Prostic, an orthopedist who provided a second-opinion
evaluation for OWCP, noted appellant’s complaint of radiating back pain worsened with most
activity. He provided findings on examination and advised that a decrease in circumference of
the right calf and the EMG findings gave some support for right radiculopathy, but appellant’s
need for a cane, along with minimal abnormalities on MRI scan, her poor range of motion and
the lack of improvement with time and treatment suggested symptom magnification. Dr. Prostic
recommended psychometric testing and a gentle but increasing exercise program. He concluded
that there were no objective findings that showed that on or around May 10 or June 8, 2010
appellant had a material change or worsening in the accepted condition which rendered her
totally disabled. On October 25, 2010 Dr. Prostic reviewed the CT myelogram and FCE results
and found no objective evidence of a correctable lesion or that permanent injury occurred due to
the February 9, 2010 work injury. He opined that additional physical treatment was unlikely to
be beneficial as appellant was more likely to respond to treatment of an abnormal psychological
response to the February 9, 2010 incident. After a review of Dr. Verstraete’s reports, on
November 5, 2010 Dr. Prostic advised that his opinion was unchanged.
Dr. Verstraete, an attending internist, provided reports dated June 11, 2010 to
July 27, 2011. He was consistent in his opinion that appellant sustained nerve root damage on
February 9, 2010 and had such severe, unrelenting pain due to this, that she was totally disabled
from all work. Dr. Verstraete stated that physical findings and objective studies supported this
opinion, and indicated that physical therapy and the FCE increased her pain. He maintained that
work hardening would harm appellant, disagreed with the opinions of Drs. Johnson and Prostic,
and maintained that an OWCP nurse manager was manipulative.
The Board finds the reports of Dr. Verstraete insufficient to establish appellant’s
recurrence claim as the physician did not provide a sufficient explanation as to how the
mechanics of the February 9, 2010 employment injury, accepted for lumbar radiculitis, caused
her complaints of unrelenting back pain such that she could not perform the essentially sedentary
duties of the modified assignment. Dr. Verstraete did not demonstrate specific knowledge of the
assignment or provide an explanation with sufficient rationale as to why appellant could not
perform the modified work duties. Moreover, pain is a symptom, not a compensable medical
diagnosis.12 Thus, Dr. Verstraete’s opinion is not sufficient to establish a change in appellant’s
condition sufficient to indicate that she could no longer perform the limited-duty position.
It is appellant’s burden of proof to submit the necessary medical evidence to establish a
claim for a recurrence.13 The record does not contain a medical report providing a reasoned
medical opinion that her claimed recurrence of disability was caused by the February 9, 2010
12

C.B., Docket No. 09-2027 (issued May 12, 2010).

13

Beverly A. Spencer, 55 ECAB 501 (2004).

7

employment injury.14 Furthermore, appellant has not shown a change in her light-duty
requirements. She therefore did not meet her burden of proof to establish disability as a result of
a recurrence.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a recurrence of disability on June 8, 2010 causally related to her accepted lumbar
radiculitis.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

14

Cecelia M. Corley, supra note 9.

8