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

)
)
)
)
)
)
)
)

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

Docket No. 16-1384
Issued: February 1, 2017

Case Submitted on the Record

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

JURISDICTION
On June 21, 2016 appellant, through counsel, filed a timely appeal from a March 17,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish ongoing total
disability commencing January 11, 2010 due to her accepted employment injuries.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

On appeal counsel contends that, as OWCP accepted the additional condition of a
consequential left fibula fracture, which rendered appellant partially disabled, she is entitled to
wage-loss compensation as there is no evidence of record showing that the employing
establishment provided appellant with an appropriate light-duty job offer after January 11, 2010.
FACTUAL HISTORY
On November 21, 2002 appellant, then a 41-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on November 20, 2002 she tripped over a rug in the performance of
duty and sustained a left knee displaced fracture. OWCP assigned File No. xxxxxx840.
Appellant underwent left knee surgery on November 25, 2002 for tension band wiring of the left
patella. OWCP accepted her claim on February 3, 2003 for fractured left patella. Appellant
underwent a second left knee surgery on April 23, 2003 to remove the left patella hardware. She
returned to full-time light-duty work on May 19, 2003.
On October 7, 2009 appellant filed a recurrence claim (Form CA-2a) alleging that she
experienced weakness, pain, soreness, and swelling in her left knee. She noted that her left knee
gave way and that she had difficulty standing and walking beginning in March 2009. On
January 11, 2010 appellant reported that her left knee gave way at work and she fell, injuring her
left ankle.
Appellant filed a second traumatic injury claim alleging that on January 11, 2010 her left
knee gave out and she fell to the floor, twisting her left ankle. OWCP assigned the claim File
No. xxxxxx746.3 On March 26, 2010 OWCP requested additional factual and medical evidence
in support of this traumatic injury claim.
By decision dated March 2, 2010, OWCP denied appellant’s claim for recurrence of
disability in March 2009.
In a note dated March 9, 2010, Dr. Michael J. Ross, Board-certified in emergency
medicine, opined that appellant should not work and indicated that she could not stand or walk
for more than one to two hours a day. On April 5, 2010 he noted that appellant continued to
experience buckling episodes from her left knee. Dr. Ross diagnosed healing distal fibular
fracture and left knee osteoarthritis with recurrent giving way. He recommended a magnetic
resonance imaging (MRI) scan.
By decision dated April 30, 2010, OWCP denied her traumatic injury claim for a
January 11, 2010 left ankle injury.
On June 9, 2010 Dr. Ross noted that appellant had continued pain in both her left knee
and ankle as well as continuous giving way of her left knee requiring crutches. He reviewed
MRI scans and found a healing distal fibular fracture in the left ankle and chronic patellar
tendinitis in the left knee. Dr. Ross opined that appellant’s left knee arthritis was accelerated by
her patellar fracture. He noted, “I do question that the osteoarthritis secondary to the patellar

3

File Nos. xxxxxx840 and xxxxxx746 were later administratively combined with xxxxxx840 serving as the
master file.

2

fracture is also causing her knee to continuously give way which led to her initial fall that
resulted in her fibular fracture.”
Appellant requested reconsideration on October 13, 2010 and argued that her left knee
arthritis was due to her November 20, 2002 employment injury.
Dr. Dennis W. Ivill, a Board-certified physiatrist, examined appellant on August 3, 2010
and diagnosed left knee degenerative joint disease causally related to her November 20, 2002
work injury when she fractured her left knee. He noted that the employment incident caused
acceleration of her left knee degenerative joint disease which was not present in her right knee on
bone scan.
In a decision dated January 11, 2011, OWCP denied modification of the April 30, 2010
decision, finding that the medical evidence of record did not support appellant’s claim for
recurrence of disability.
Appellant requested reconsideration. By decision dated February 8, 2012, OWCP denied
modification of its prior decisions finding that she had not established a recurrence of her
accepted left knee fracture beginning March 2009.
Appellant filed a second recurrence claim (Form CA-2a) on August 28, 2012. She
alleged that her left knee “gave out” on January 11, 2010 and she fell to the floor, twisting her
left ankle. Appellant asserted that her November 20, 2002 employment injury weakened her left
knee and caused severe pain, stiffness, weakness, and swelling. She noted that she walked with a
limp and had difficulty walking and standing.
In a decision dated November 28, 2012, OWCP denied appellant’s August 28, 2012
recurrence claim, finding that there was insufficient medical reasoning of record to support that
appellant’s accepted November 20, 2002 left knee fracture resulted in her current knee condition.
On December 4, 2002 appellant, through counsel, requested an oral hearing from
OWCP’s Branch of Hearings and Review regarding the November 28, 2012 OWCP decision. At
the oral hearing held on March 25, 2013, appellant described her November 20, 2002 left knee
injury and explained that she returned to full duty in May 2004. In 2009 she developed severe
pain, swelling and weakness in the left knee. Appellant walked with a limp and her knee
buckled on an average of three times a week. She began wearing a knee brace or bandage. On
January 11, 2010 appellant’s left knee gave way and she fell to the floor twisting her left ankle.
She was diagnosed with tibial fracture and did not return to work. Appellant testified that since
January 11, 2010 she used crutches or a wheelchair for mobility.
In a June 13, 2013 decision, OWCP’s hearing representative affirmed the November 28,
2012 decision as modified finding that appellant was in fact alleging that she had sustained a
consequential injury, rather than a recurrence of disability. He determined that she had not
submitted medical evidence sufficient to establish that she sustained a left ankle fracture as a
consequence of her accepted left knee injury.
In a June 17, 2013 decision, OWCP denied appellant’s claim for a consequential injury as
a result of her November 20, 2002 employment injury. Counsel requested an oral hearing with
OWCP’s Branch of Hearings and Review on July 17, 2013.
3

On June 28, 2013 counsel requested reconsideration of the April 30, 2010 decision
denying appellant’s traumatic injury claim.
In a report dated August 15, 2013, Dr. Ivill noted that he initially examined appellant on
June 25, 2010 due to left ankle, left knee, and left lower extremity pain. He reported that she
fractured her patella on November 20, 2002. Dr. Ivill diagnosed chronic regional pain syndrome
of the left lower extremity. He noted that appellant’s January 11, 2010 fall was secondary to the
original November 20, 2002 work injury which caused the left leg weakness and instability.
Dr. Ivill opined that her left knee had given way regularly since her initial injury due to arthritis
from her traumatic injury. He noted that complications associated with fracture of the patella
included stiffness, swelling, atrophy, and arthritis. Dr. Ivill opined that on January 11, 2010
appellant’s left knee gave out causing her to fall and fracture her left fibula down at the left
ankle. In a December 4, 2013 note, he reported that she fell on November 23, 2013. Appellant
reported left buttock pain since the fall. She underwent a lumbar MRI scan on November 11,
2013 which demonstrated disc herniation at L5-S1. Appellant underwent surgery on January 15,
2014 due to her left distal tibia fracture.
In a decision dated March 11, 2014, OWCP denied appellant’s June 28, 2013 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
By decision dated March 18, 2014, OWCP’s hearing representative vacated the June 17,
2013 decision, finding that OWCP should refer appellant for a second opinion evaluation based
on Dr. Ivill’s August 15, 2013 report.
On March 21, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. In a report dated April 17, 2014,
Dr. Didizian noted appellant’s history of injury on November 20, 2002 and her resulting
fractured left patella. He further related that appellant reported that on January 11, 2010 her left
knee collapsed and she fell fracturing her left distal fibula. Dr. Didizian examined appellant’s
left knee and found 10 to 90 degrees of motion. He reported crepitation at the patellofemoral
joint with positive inhibition and compression test. Dr. Didizian also found weak extensor
halluces longus on the left and decreased sensation in the left lower extremity from the knee
down. He diagnosed degenerative disease of the left patellofemoral joint and malalignment.
Dr. Didizian found that appellant’s patellar fracture was a direct result of her work injury. He
noted that appellant could perform limited duty.
In an April 28, 2014 e-mail, OWCP noted that Dr. Didizian did not provide an opinion on
appellant’s alleged consequential injury. On June 16, 2014 it asked that Dr. Didizian clarify
whether her left ankle fracture occurred as a result of her accepted left knee injuries. In a report
dated June 16, 2014, Dr. Didizian opined that appellant’s left ankle fracture was a consequence
of her November 20, 2002 work injury. OWCP accepted the claim for open fracture of the left
fibula on June 20, 2014.
Dr. Bruce Lutz, a Board-certified orthopedic surgeon, examined appellant on July 19,
2014 noting that she fell on June 14, 2014 when her left knee gave way. Appellant underwent an
electromyogram (EMG) and nerve conduction velocity (NCV) study on June 20, 2014 which
suggested possible upper motor neuron lesion. On July 8 and 17, 2014 Dr. Ivill opined that
4

appellant’s January 10, 2014 injury was causally related to her November 2002 work injury as
her left lower extremity symptoms and pain caused her fall. On July 23, 2014 appellant
underwent a thoracic spine MRI scan which demonstrated multilevel degenerative disc disease
throughout the thoracic spine most significant at the T8-9 level with disc protrusions at T7-8,
T8-9, and T11-12. Her lumbar MRI scan of July 23, 2014 demonstrated mild degenerative disc
disease at T11-12 with a small right disc protrusion. Appellant also exhibited degenerative disc
disease at L2-3, L3-4, L4-5, and L5-S1 with disc bulges.
Appellant filed claims for compensation (Form CA-7) requesting compensation for leave
without pay from February 26 through December 3, 2010 and from April 2, 2011 through
December 12, 2014. In a letter dated August 28, 2014, OWCP requested that appellant provide
medical evidence supporting her total disability from work due to her accepted consequential
injury.
In a report dated August 28, 2014, Dr. Ivill reviewed appellant’s thoracic spine MRI scan
and found marked right anterior displacement of the thoracic cord at T6-7. He diagnosed
transdural cord herniation. On September 12, 2014 Dr. Ivill attributed appellant’s osteoporosis,
left tibial fracture, and falls on November 23, 2013 and January 10, 2014 to her November 20,
2002 employment injury. He examined appellant on October 1, 2014 and opined that her
November 20, 2002 employment injury resulted in her January 11, 2010 fall, and left leg
weakness and instability, as well as complex regional pain syndrome. Dr. Ivill also described
appellant’s November 23, 2013 and January 10, 2014 falls with left tibial fracture and “possible
thoracic myelopathy.” Appellant underwent a computerized tomography scan of her thoracic
spinal cord on September 16, 2014 which confirmed transdural cord herniation at T6-7.
On February 10, 2014 the employing establishment indicated that neither accommodation
nor reassignment were possible. It provided appellant with a notification of personnel action
(Form SF-50) indicating that her last day in pay status was July 26, 2014 and that she was totally
disabled from useful and efficient service in her position. Appellant received disability
retirement on October 20, 2014.
On November 20, 2014 appellant elected to receive FECA benefits, effective
January 11, 2010.
By decisions dated December 18 and 19, 2014, OWCP denied appellant’s claims for
compensation from February 26 through December 3, 2010 and April 2, 2011 through
December 12, 2014. Counsel requested an oral hearing from OWCP’s Branch of Hearings and
Review on December 29, 2014.
Appellant underwent surgery on March 30, 2015 to repair a thoracic T6-7 transdural
spinal cord herniation including a T5-8 posterior arthrodesis with autograft and a T6-7 complete
laminectomy.
In a decision dated May 11, 2015, OWCP’s hearing representative found that the case
required further development by OWCP. She noted that appellant stopped work in January 2010
due to a consequential injury and that OWCP accepted this injury based on the opinion of
Dr. Didizian. The hearing representative noted that Dr. Didizian opined that appellant could not
perform her regular duties due to her work injuries. She further noted that the record did not

5

indicate that light duty was available to appellant. The hearing representative remanded the case
for OWCP to combine appellant’s files, update the statement of accepted facts, and request a
supplemental report from Dr. Didizian regarding the extent of appellant’s disability since
January 11, 2010. She also noted that the employing establishment should confirm whether
appellant was offered light duty for any period after January 11, 2010.
In a May 27, 2015 e-mail, OWCP requested that the employing establishment confirm if
appellant was offered light duty for any period after January 11, 2010. The employing
establishment responded on May 28, 2015 and indicated that the medical evidence submitted
supported total disability from January 11, 2010. OWCP again requested information from the
employing establishment regarding available light-duty work on July 8, 2015.
OWCP requested additional information from Dr. Didizian on July 8, 2015.
Dr. Ivill completed a report on July 8, 2015 and attributed appellant’s January 11, 2010
fall to her November 20, 2002 employment injury. He noted that the 2010 fall caused left lower
extremity weakness, instability and complex regional pain syndrome. Dr. Ivill also reported
appellant’s falls on November 23 and January 10, 2014 with an additional left tibial fracture. He
noted that appellant underwent thoracic fusion on March 30, 2015 and recently fell again.
On September 2, 2015 OWCP referred appellant for an additional second opinion
evaluation with Dr. Didizian. In a September 10, 2015 report, Dr. Didizian noted that appellant
denied any prior mid-back pain from 2010. He noted that appellant had thoracic surgery on
March 30, 2015 for myelomalacia to prevent her neurological condition from worsening.
Appellant continued to describe left knee buckling, aching, and pain. Dr. Didizian examined
appellant’s lower extremities and found hyperreflexia of the knee reflex and decreased sensation
in the left leg in all dermatomes. He noted that appellant had no extensor hallucis longus
resistance, peroneal resistance, or tibialis anterior resistance on the left. Dr. Didizian reviewed
the medical evidence and opined that appellant’s left leg weakness was due to a thoracic disc
injury discovered in June 2014 and not her left knee. He disagreed with Dr. Ivill’s diagnosis of
reflex sympathetic dystrophy. Dr. Didizian found that appellant’s left lower extremity fractures
had healed and that she could perform modified duty. OWCP requested that he provide an
opinion on appellant’s periods of partial and total disability beginning in January 2010.
Dr. Didizian responded, “Partially disabled from left knee patella femoral arthritis. Totally
disabled from thoracic spine surgery.” He completed a work capacity evaluation.
OWCP issued a decision on October 16, 2015 denying appellant’s claims for
compensation for the periods February 26 through December 3, 2010 and April 2, 2011 through
October 2, 2015.
Counsel requested an oral hearing on October 28, 2015. He appeared at the oral hearing
on February 8, 2016 and argued that the employing establishment failed to provide appellant
with light-duty work, and that Dr. Didizian failed to specifically address any periods of partial
disability due to appellant’s accepted employment injuries.
By decision dated March 17, 2016, OWCP’s hearing representative found that appellant
was entitled to compensation for total disability for the period January 11 to February 1, 2010,
but that appellant had not filed a claim for this period. He further denied her claim for wage-loss

6

compensation benefits from February 2, 2010 forward as her total disability from that point
forward was due to nonoccupational conditions. The hearing representative noted that appellant
could have worked limited duty after February 2, 2010 due to her accepted knee fractures, but
that she was totally disabled due to other conditions and the employing establishment was not
required to offer restricted duty to a totally disabled employee.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurts too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.7 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.10 Neither the fact that a disease
4

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

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

10

Leslie C. Moore, 52 ECAB 132 (2000).

7

or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.11
ANALYSIS
The Board finds that this case is not in posture for a decision.
On June 20, 2014 OWCP accepted appellant’s claim for a consequential left ankle
fracture on January 11, 2010 resulting from her November 20, 2002 employment injury.
Appellant filed claims for compensation requesting wage-loss compensation from February 26
through December 3, 2010 and from April 2, 2011 through December 12, 2014. On May 11,
2015 OWCP’s hearing representative remanded the case for OWCP to obtain a supplemental
report from Dr. Didizian addressing appellant’s periods of total and partial disability due to her
consequential left ankle injury. OWCP requested that Dr. Didizian provide an opinion on
appellant’s periods of partial and total disability beginning in January 2010. Dr. Didizian
responded, “Partially disabled from left knee patella femoral arthritis. Totally disabled from
thoracic spine surgery.” He also completed a work capacity evaluation. The Board finds that
this report from Dr. Didizian failed to fully respond to OWCP’s queries and did not address,
much less resolve, the ongoing issue of appellant’s period of partial and total disability due to her
accepted employment injuries.
Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested
arbiter. In a case where OWCP “proceeds to develop the evidence and to procure medical
evidence, it must do so in a fair and impartial manner.”12 The Board finds that OWCP undertook
further development of the medical evidence regarding the issue of periods of partial and total
disability causally connected to her accepted employment condition of fracture of her left ankle,
by referring appellant to Dr. Didizian for a supplemental report, but failed to obtain a response to
the questions posed. As Dr. Didizian did not fully respond, and as the employing establishment
failed to respond to the queries regarding light-duty work, the Board finds that the case must be
remanded to OWCP for further development of these issues and a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

11

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

12

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

8

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: February 1, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
LOGISTICS CENTER, TINKER AIR FORCE
BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1683
Issued: March 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 9, 2010 appellant filed a timely appeal from a May 11, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met his burden to establish that he sustained a recurrence
of disability beginning April 21, 2009 causally related to his accepted January 16, 2004
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 16, 2004 appellant, then a 59-year-old electronics mechanic, injured his right
knee while exiting an aircraft at the employing establishment. He was placed on restricted duty
the following day. The Office accepted appellant’s claim for right knee lateral and medial
meniscal tears.
Appellant underwent an authorized right knee arthroscopy with partial medial and lateral
meniscectomy and laser chondroplasty of the lateral tibial plateau on May 18, 2004. He attended
physical therapy starting June 15, 2004 and exhibited improvement in leg strength, ambulation
and range of motion through July 6, 2004.
In an August 23, 2004 report, Dr. Anthony L. Cruse, a Board-certified orthopedic
surgeon, examined appellant’s right knee and observed mild quadriceps atrophy, retropatellar
crepitus, medial joint line pain and positive Spring, McMurray and Apley tests. He noted
previous diagnoses and released appellant from treatment and advised that he could return to
regular-duty work that day.
Appellant retired from federal service effective March 3, 2008.
On October 19, 2009 appellant submitted an authorization request to the Office for
medical treatment, stating that his right knee was “burning,” making “a gadding sound” and
occasionally unstable. In an October 20, 2009 letter, the Office notified him that his case was
closed since 2004. It advised appellant to file a recurrence of disability claim if he believed that
he sustained a recurrence and to submit documentation of ongoing medical treatment since 2004.
Appellant filed a recurrence of disability on November 3, 2009 alleging that he sustained
pain in his right knee on September 1, 2008. He attributed his knee pain to walking, climbing,
kneeling and driving a manual transmission vehicle as an alarm technician for a private sector
employer. Appellant stopped work on April 21, 2009.2
In a November 5, 2009 letter, the Office informed appellant that additional evidence was
needed to establish his claim. It gave him 30 days to submit a medical report from a physician
that included a complete and accurate history of injury, examination findings, diagnosis, clinical
course of treatment followed, the period and extent of disability and the physician’s opinion
explaining the connection between his present condition and the accepted January 16, 2004 work
injury. Appellant did not respond.
By decision dated December 7, 2009, the Office denied appellant’s claim, finding the
evidence insufficient to establish causal relationship.
In a December 16, 2009 statement, appellant noted that he worked for a private company
after his federal retirement between August 25, 2008 and April 21, 2009. He asserted that job

2

Appellant indicated that he filed a compensation claim for a back injury on July 14, 2005. The back claim is not
before the Board on the present appeal.

2

duties with his new employer, namely driving a stick shift truck, aggravated his 2004 right knee
injury. Appellant added that he also sustained neck and back pain and sleep apnea.
Medical records from Dr. Arif A. Shakir, a Board-certified internist, dated November 21,
28 and December 21, 2006 diagnosed various health conditions such as hypertension, coronary
artery disease, angina, arrhythmia, sick sinus syndrome, gastroesophageal reflux disease and
gallstones.
Appellant timely requested an oral telephonic hearing, which was held on March 2, 2010.
At the hearing, he testified that he was unemployed since April 21, 2009. When counsel pointed
out that no physician’s report opined “a spontaneous reoccurrence of [appellant’s] knee injury”
and described the September 1, 2008 injury as an aggravation due to private employment,
appellant responded, “That’s a fair statement.” Appellant indicated that he stopped work with
his private employer when he was laid off.
By decision dated May 11, 2010, an Office hearing representative affirmed the
December 7, 2009 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.”3
An employee who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which he claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.4 Where no rationale is present, the
medical evidence is of diminished probative value.5 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.6

3

20 C.F.R. § 10.5(x).

4

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

5

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Robert H. St. Onge, 43 ECAB 1169 (1992).

6

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

3

ANALYSIS
On April 8, 2004 the Office accepted that appellant tore his right knee lateral and medial
menisci on January 16, 2004 while in the performance of duty. After undergoing a May 18,
2004 arthroscopic surgery, Dr. Cruse released him to his regular full-time work on
August 23, 2004. Appellant remained at the employing establishment until his retirement on
March 3, 2008. On November 3, 2009 he filed a claim for a recurrence of disability.
The Board finds that appellant has not submitted sufficient medical evidence to establish
a spontaneous change in his right knee condition that resulted from his accepted injury.
Although appellant alleged that he sustained right knee pain on September 1, 2008, for which he
stopped work on April 21, 2009 related to the accepted January 16, 2004 injury, he did not
submit any medical evidence of bridging symptoms supporting causal relationship.7 The Office
advised him in October 20 and November 5, 2009 letters that medical evidence was needed to
establish his claim. Appellant did not submit any responsive medical evidence and the Office
properly denied his claim on December 7, 2009. After requesting an oral hearing, he submitted
reports from Dr. Shakir dated November 21, 28 and December 21, 2006; but none of the reports
address the claimed recurrence involving the right knee condition. At the March 2, 2010
hearing, appellant acknowledged that he did not provide any medical evidence demonstrating a
spontaneous recurrence of disability. After the hearing, he submitted no medical evidence
addressing the claimed recurrence of disability.8 Since appellant presented no medical evidence
to support his claim of a recurrence of disability beginning April 21, 2009 causally related to the
accepted January 16, 2004 work injury, he failed to establish his claim for compensation.
Appellant argues on appeal that an Office hearing representative’s May 11, 2010 decision
was contrary to fact and law. As stated above, he failed to submit any medical evidence of
bridging symptoms supporting his recurrence of disability claim.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability causally related to his accepted January 16, 2004 employment injury.

7

Id. The Board has consistently affirmed denial of recurrence of disability in the absence of documented
evidence of bridging symptoms for a lengthy duration. See, e.g., Leslie S. Pope, 37 ECAB 798 (1986) (nine
months); Leon Harris Ford, 31 ECAB 514 (1980) (10 years).
8

The factual evidence also suggests that appellant attributed his symptoms to duties in his nonfederal
employment.

4

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Cherry Point, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1923
Issued: April 20, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from the January 29 and June 22, 2010
merit decisions of the Office of Workers’ Compensation Programs, which denied an increased
schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to an increased schedule award.
FACTUAL HISTORY
In 1998 appellant, a 40-year-old sandblaster, filed an occupational disease claim alleging
that his carpal tunnel syndrome was a result of hand-cleaning, stripping or blasting small aircraft

1

5 U.S.C. § 8101 et seq.

components, which made his hands numb. The Office accepted his claim for bilateral carpal
tunnel syndrome and approved surgical releases.
In 2000 appellant received a schedule award for a 27 percent impairment of his left upper
extremity.2 The Office also paid compensation for a 10 percent impairment of his right upper
extremity.
In 2005 the attending orthopedic surgeon, Dr. Lawrence R. Morales, determined that
appellant had a 15 percent impairment of each upper extremity. The Office medical adviser
agreed based on mild sensory latency. In 2007 the Office issued an increased award: “30
percent [p]ermanent [p]artial [i]Impairment (PPI) for [b]ilateral [u]pper [e]xtremities (15 percent
PPI [e]ach) for a Total of 42 percent PPI of the [l]eft [u]pper [e]xtremity and 30 percent PPI of
the [r]ight [u]pper [e]xtremity to [d]ate.”
In 2009 appellant filed a claim for an increased schedule award. He submitted a June 4,
2009 impairment rating from Dr. Morales, who now found only a 4 percent impairment of the
left upper extremity and a 12 percent impairment of the right, both based on range of motion.3
An Office medical adviser reviewed the evaluation and determined that appellant had a three
percent impairment of his left upper extremity and a nine percent impairment of his right. He
made clear that this was appellant’s total impairment, not to be added to his previous awards.
In a decision dated January 29, 2010, the Office denied an increased award. It explained
that appellant had already received compensation for a 42 percent impairment of the left upper
extremity and a 30 percent impairment of the right, so the latest impairment ratings showed no
entitlement to more compensation. On June 22, 2010 an Office hearing representative affirmed.
On appeal, appellant submits copies of correspondence, a copy of Dr. Morales’
impairment rating and a copy of electrodiagnostic studies.
LEGAL PRECEDENT
Section 8107 of the Act4 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment.5
2

The Office found 7 percent impairment due to loss of wrist motion, 10 percent impairment due to pain, and 10
percent impairment due to mild left carpal tunnel syndrome.
3

The left wrist showed 60 degrees flexion, 50 degrees extension, 20 degrees radial deviation and 30 degrees ulnar
deviation. The right wrist showed 50, 50, 10 and 30 degrees respectively. Dr. Morales used a Grade 3 (severe)
functional history to reach the final ratings.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

2

ANALYSIS
At the outset, the Board notes that before appellant’s most recent claim for an increased
schedule award, he had already received compensation for a 42 percent impairment of his left
upper extremity (27 percent plus 15 percent) and for a 25 percent impairment of his right (10
percent plus 15 percent). So the question presented to the Board is whether the latest impairment
rating from his attending orthopedic surgeon, Dr. Morales, shows that he has a greater
impairment in either extremity. The Board finds that the evidence appellant submitted does not
support his claim.
Dr. Morales found only a 4 percent impairment of the left upper extremity and a 12
percent impairment of the right, far less than would be necessary to show that appellant should
receive more compensation.
An Office medical adviser properly reviewed Dr. Morales’ report. However, he was able
to justify only a three percent impairment of the left upper extremity and a nine percent
impairment of the right. This, too, fell far short of the percentages needed to show that appellant
was entitled to more compensation.
Starting with the left wrist, the Board notes that 60 degrees of flexion represents no
impairment of the upper extremity, according to Table 15-32, page 473 of the sixth edition of the
A.M.A., Guides.6 Extension of 50 degrees is three percent impairment (Grade 1 or mild). Radial
deviation of 20 degrees and ulnar deviation of 30 degrees both show no impairment. So
consistent with Dr. Morales’ findings, appellant has three percent impairment of his left upper
extremity due to loss of wrist motion.
The A.M.A., Guides allows an adjustment to the range of motion impairment, a
percentage add-on to reflect the patient’s subjective assessment of functional symptoms. But
here, no amount of “adjustment” to appellant’s 3 percent rating will show that he has more than a
42 percent impairment of his left upper extremity. Nonetheless, Dr. Morales reported that
appellant had a Grade 3 or severe functional history.7 According to the procedure set forth at
page 474 of the A.M.A., Guides, the grade of the loss of motion (Grade 1) is subtracted from the
grade of the functional history (Grade 3) for a net modifier of 2. Table 15-36, page 477,
indicates that a net modifier of 2 allows an adjustment equal to 10 percent of the range of motion
impairment. So the adjustment to appellant’s range of motion impairment is 0.3 percent, or a
final rating of 3.3 percent, which rounds back down to 3. This does not establish that he is
entitled to more compensation for his left upper extremity.
Turning to the right wrist, 50 degrees of flexion represents a three percent (Grade 1)
impairment of the upper extremity, again according to Table 15-32, page 473. Extension of 50
degrees is another three percent (Grade 1) impairment. Radial deviation of 10 degrees is a two
percent (Grade 1) impairment and ulnar deviation of 30 degrees represents no impairment. So
6

American Medical Association, Guides to the Evaluation of Permanent Impairment 473 (6th ed. 2009) (Table
15-32).
7

See id. at 406 (Table 15-7).

3

consistent with Dr. Morales’ findings, appellant has an eight percent impairment of his right
upper extremity due to loss of wrist motion.
Dr. Morales reported that appellant had a Grade 3 or severe functional history. So the net
modifier is 2, the same as on the left. The adjustment is 10 percent of the range of motion
impairment, or 0.8 percent, for a final rating of 8.8 percent, which rounds to 9. Again, this does
not establish that appellant is entitled to receive more compensation for his right upper extremity.
Because the impairment rating appellant submitted to support his claim for an increased
schedule award does not show that he has more than a 42 percent impairment of his left upper
extremity or more than a 25 percent impairment of his right upper extremity, the Board finds that
appellant is not entitled to an increased award.
The correspondence and medical evidence appellant submitted on appeal have no bearing
on his impairment rating under the A.M.A., Guides. Electrodiagnostic studies may show
“moderate” carpal tunnel syndrome on the left and “mild” on the right, but the conduction delays
must be sufficient to meet the criteria for carpal tunnel syndrome on page 487 of the A.M.A.,
Guides. Even if they did allow a diagnosis-based estimate of impairment, the highest
impairment rating a claimant may receive for the severest entrapment or compression neuropathy
under Table 15-23, page 449, is 9 percent, which is much less than the 42 and 25 percent ratings
appellant has previously received.
CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award.

4

ORDER
IT IS HEREBY ORDERED THAT the June 22 and January 29, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 20, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-700
Issued: June 7, 2013

Case Submitted on the Record

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

JURISDICTION
On February 5, 2013 appellant, through his attorney, filed a timely appeal from a
January 10, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left hip condition causally related to factors of
his federal employment.
FACTUAL HISTORY
On December 29, 2009 appellant, then a 59-year-old clerk, filed an occupational disease
claim alleging that he required a total left hip replacement due to factors of his federal

1

5 U.S.C. § 8101 et seq.

employment. He related that he experienced left knee pain that spread into the left hip from
walking on concrete floors. Appellant stopped work on September 25, 2009.
By letter dated February 1, 2010, OWCP requested that appellant provide a description of
the work factors to which he attributed his condition and submit a detailed medical report
addressing the relationship between any diagnosed condition and his federal employment duties.
In a decision dated March 1, 2010, OWCP denied appellant’s claim on the grounds that
he had not established the work factors alleged to have caused his condition or submitted
medical evidence relating a diagnosed condition to the identified work factors.
On March 22, 2010 appellant, through his attorney, requested a telephone hearing before
an OWCP hearing representative. At the telephone hearing, held on June 1, 2010, he indicated
that he had prior employment injuries, including a 1987 injury to the left knee, assigned file
number x xxxxx190. Appellant described his work duties and indicated that he began to
experience hip pain when standing. He related that a physician told him that his hip problem
resulted from a combination of his prior left knee condition and his work duties.
In a report dated June 17, 2010, Dr. J. Michael Joly, a Board-certified orthopedic
surgeon, discussed appellant’s history of a November 11, 2009 left hip replacement and noted
that he had “questions regarding the cause of the left hip pain and osteoarthritis….” He stated,
“[Appellant] has had severe left hip osteoarthritis most likely for years as a result of favoring the
left knee which was injured on the job back in January 2009. It is possible within a reasonable
degree of medical certainty that the severe left hip osteoarthritis, which was preexisting, is
aggravated by the fact that he was favoring an injured left knee.”
By decision dated July 20, 2010, OWCP’s hearing representative affirmed the March 1,
2010 decision. She found that appellant had not submitted any medical evidence.
On April 27, 2012 appellant’s attorney indicated that he had submitted a request for
reconsideration on July 26, 2010. On October 10, 2012 counsel inquired why OWCP had not
issued a decision on his reconsideration request.
In a decision dated January 10, 2013, OWCP denied modification of its July 20, 2010
decision. It reviewed Dr. Joly’s June 17, 2010 report and found that it did not contain sufficient
rationale to establish causal relationship between the hip condition and factors of appellant’s
federal employment.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
2

OWCP indicated that Dr. Joly submitted reports dated June 17 and July 26, 2010; however, there is only one
report and it is dated June 17, 2010.
3

5 U.S.C. § 8101 et seq.

2

limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
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;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,9 must be one of reasonable medical certainty10 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.11
ANALYSIS
Appellant attributed his left hip condition to a prior left knee injury and to standing and
walking on a concrete floor in the performance of his work duties. He described his work duties
in detail at the hearing. OWCP denied appellant’s claim after finding that the medical evidence
did not establish that he sustained an employment-related left hip condition.
On June 17, 2010 Dr. Joly noted that appellant had undergone a left hip replacement on
November 11, 2009. He diagnosed a history of severe osteoarthritis of the left hip due to a
change in gait caused by a January 2009 injury to the left knee. Dr. Joly opined that appellant’s
left knee injury aggravated the left hip arthritis.
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

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

8

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

9

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

10

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

11

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

3

employment.12 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.13 Dr. Joly’s report fails to adequately explain how appellant’s
prior or current employment condition caused the current need for hip surgery. Without a
rationalized analysis of causation, appellant has failed to discharge his burden of proof.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a left hip condition
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2013 is affirmed.
Issued: June 7, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

12

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

13

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-970
Issued: August 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 8, 2011 appellant filed a timely appeal from a December 16, 2010 Office of
Workers’ Compensation Programs’ decision which denied his recurrence claim. Appellant also
appealed a February 16, 2011 Office decision that denied his request for an oral hearing on the
grounds that it was untimely filed. The appeal was docketed as 11-970.
The Board, having duly reviewed the case record, notes that the Office erred in finding
that appellant’s hearing request was not timely. Section 8124(b)(1) of the Federal Employees’
Compensation Act states unequivocally that a claimant not satisfied with a decision of the Office
has a right, upon timely request, to a hearing before a representative of the Office.1 A claimant is
not entitled to a hearing if the request is not made within 30 days of the date of issuance of the
decision as determined by the postmark or other carrier’s date marking of the request.2
Following the December 16, 2010 Office decision, appellant requested an oral hearing on
January 16, 2011.
The envelope containing the hearing request was postmarked
1
2

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

20 C.F.R. § 10.616(a); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (June 1997).

January 16, 2011. By decision dated February 16, 2011, the Office denied appellant’s hearing
request as untimely filed. The Board has held that, in computing a time period, the date of the
event from which the designated period of time begins to run shall not be included while the last
day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal
holiday.3 The 30-day time period for determining the timeliness of appellant’s hearing request
began on December 17, 2010 and ended on January 15, 2011, a Saturday. The first regular
business day after January 15, 2011 was Tuesday January 18, 2011.4 As appellant’s hearing
request was postmarked January 16, 2011, his hearing request was timely.
Inasmuch as appellant’s hearing request was timely filed, the Board will set aside the
February 16, 2011 decision and remand the case for the Office to schedule an oral hearing.5
IT IS HEREBY ORDERED THAT the February 16, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this order of the Board.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

John B. Montoya, 43 ECAB 1148 (1992); see Donna A. Christley, 41 ECAB 90 (1989).

4

Monday, January 17, 2011, was a federal holiday.

5

In view of the Board’s decision regarding the timeliness of appellant’s request for a hearing before the Office, it
is not necessary to consider appellant’s request for an oral argument before the Board.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE INTERIOR, LASSEN
VOLCANIC NATIONAL PARK, Mineral, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-499
Issued: June 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 2, 2014 appellant filed a timely appeal from a July 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed from the most recent merit decision dated
June 22, 2012 to the filing of this appeal and pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant argues that OWCP erred in denying his request for a merit review,
failing to expand his claim to include additional conditions and in terminating his compensation
benefits.
FACTUAL HISTORY
This case has previously been before the Board.2 On September 29, 1994 appellant, then
a 48-year-old seasonal motor vehicle operator, strained his lower back and skinned his left jaw
while in the performance of duty. OWCP accepted the claim for left jaw contusion and low back
strain, postconcussion syndrome, aggravation of preexisting migraines and suboccipital
neuralgia. Appellant stopped work on September 29, 1994 and was placed on the periodic rolls
in receipt of temporary total disability.
In a December 10, 2011 letter, appellant requested reimbursement for his massage
therapy treatment and therapeutic sessions with a personal trainer. He stated that his physician
had prescribed the treatments and that OWCP had previously authorized massage therapy
treatment.
On February 15, 2012 OWCP received prescriptions dated October 12 and December 8,
2009 from Dr. David B. Hagie, who recommended a personal trainer for total body muscle
imbalance and areas of disuse atrophy from lumbosacral sprain, spondylolisthesis and
postconcussion syndrome.
It also received appellant’s request for authorization and
reimbursement for the personal trainer for the period October 27, 2009 through March 18, 2010
and reimbursement for massage therapy for the period January 5 to July 29, 2010.
In an undated progress report received on April 11, 2012, Dr. Hagie diagnosed headache,
migraine and somatic cranium, lumbar and sacrum dysfunctions. He recommended massage
therapy for treatment of appellant’s headaches.
By correspondence dated April 26, 2012, OWCP requested additional information from
Dr. Hagie explaining why appellant’s July 29, 1994 employment injury required a personal
trainer or massage therapy when it had been found that his postconcussion syndrome had

2

In the first appeal, the Board affirmed a July 3, 2008 OWCP hearing representative’s decision finding an
overpayment of compensation and denying wavier of the recovery of the overpayment. See Docket No. 08-2265
(issued September 28, 2009). The Board reversed OWCP’s April 10, 2008 decision which denied reconsideration of
a February 2, 2007 decision terminating monetary benefits pursuant to 5 U.S.C. § 8106(c). The Board noted that on
June 9, 2004 OWCP referred to Dr. Mary Reif, a Board-certified neurologist, to resolve the conflict in the medical
opinion evidence between Dr. David B. Hagie, a treating Board-certified osteopath, and Dr. Stephen C. Zinsmeister,
a second opinion Board-certified psychiatrist and neurologist, on the issues of whether appellant was capable of
performing sedentary work for eight hours per day and whether his current condition was employment related and
totally disabling. On July 8, 2004 Dr. Reif concluded that appellant was capable of working an eight-hour day with
restrictions. The Board found that OWCP improperly relied upon the July 8, 2004 opinion of Dr. Reif, the impartial
Board-certified neurologist, as the opinion was not current. On remand, by decision dated December 16, 2010,
OWCP terminated appellant’s compensation benefits, with the exception of the medical benefits for headache
aggravation, effective that date. It denied reconsideration on December 16, 2011 and the Board affirmed on
December 6, 2012. See Docket No. 12-1473 (issued December 6, 2012).

2

resolved and that a physical examination by a second opinion physician found appellant to be
“well-muscled.”
In a May 8, 2012 letter, appellant related that he was requesting reimbursement for a
personal trainer for the period October 27, 2009 to October 28, 2010 and reimbursement for
massage therapy for the period January 5 to October 28, 2010. He related that he had been
reimbursed for massage therapy for the period August 12 to October 28, 2010. In support of his
request, appellant submitted medical evidence from Dr. Hagie for the period August 20, 1999
through May 1, 2012.
On June 11, 2012 Dr. Kenneth D. Sawyer, an OWCP medical adviser, reviewed the
medical evidence of record. He concluded that the massage therapy and personal trainer did not
meet the statutory requirements under FECA as it would not reduce the period or degree of
disability or likely cure or give relief or aid in decreasing the amount of compensation paid.
Dr. Sawyer related that Dr. Hagie based his recommendations for treatment on conditions not
accepted by OWCP. He found no convincing evidence that appellant suffered from the multiple
conditions for which Dr. Hagie recommended treatment.
By decision dated June 22, 2012, OWCP denied appellant’s request for reimbursement
for a personal trainer from October 27, 2009 through March 18, 2010 or for massage therapy
treatments from January 5 to July 29, 2010.
In a letter dated June 2, 2013, appellant requested reconsideration of the June 22, 2012
decision denying reimbursement. He contended that Dr. Hagie had provided adequate rationale
explaining how the personal trainer and massage treatment met the statutory definition under
FECA. Appellant also requested that his claim be expanded to accept an aggravation of
degenerative disc disease and cervical strain and that his compensation benefits be reinstated as
of December 16, 2010.
By decision dated July 12, 2013, OWCP denied further reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).

3

of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
By letter dated June 2, 2013, appellant requested reconsideration; but he did not submit
any relevant and pertinent new evidence or new relevant argument with his request. He
reiterated that his treating physician had provided sufficient rationale to meet FECA
requirements for approval of a personal trainer and massage therapy. Appellant also reiterated
that his compensation benefits should be reinstated, effective December 16, 2010, the date
OWCP terminated his compensation benefits and that his claim be expanded to include
additional conditions. The Board finds that appellant did not raise new arguments or present new
evidence that OWCP erroneously applied or interpreted a specific point of law; advanced any
relevant legal arguments not previously considered by OWCP; or present any relevant and
pertinent new evidence, he is not entitled to further review of the merits of his claim under any
criteria of section 10.606(b)(3).7
As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, OWCP properly denied his June 2, 2013 request for reconsideration.
On appeal appellant contends that OWCP erred in the evidence upon which it relied in
terminating his compensation benefits, failing to expand his claim to include additional
conditions and denying authorization and reimbursement for a personal trainer and massage
therapy. The merits of his claim are not before the Board as the only decision currently on
appeal is the nonmerit July 12, 2013 decision. As discussed above appellant has not met any of
the regulatory requirements under 20 C.F.R. § 10.606 to warrant a merit review of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
6

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

A.K., Docket No. 09-2032 (issued August 3, 2010); W.C., 59 ECAB 372 (2008); Susan A. Filkins, supra note 4.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2013 is affirmed.
Issued: June 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Anita Lewallen, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0936
Issued: June 24, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 25, 2020 appellant, through her representative, filed a timely appeal from a
February 25, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 25, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has established that the acceptance of her claim
should be expanded to include additional or consequential conditions of fibromyalgia,
depression/anxiety, insomnia, and cervical enthesopathy as a result of her accepted September 14,
2017 employment injury; (2) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 4, 2019; and (3) whether appellant
has met her burden of proof to establish continuing employment-related residuals or disability on
or after April 4, 2019 due to her accepted September 14, 2017 employment injury.
FACTUAL HISTORY
On September 16, 2017 appellant, then a 30-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on September 14, 2017 she sustained neck, shoulder, back,
left hip, and knee injuries when her vehicle was rear-ended by a truck, in the performance of duty.
She stopped work on September 15, 2017. OWCP accepted appellant’s claim for neck sprain,
back wall of thorax strain, back strain, and head contusion. It paid appellant wage-loss
compensation on the supplemental rolls as of November 11, 2017 and on the periodic rolls as of
January 7, 2018.
On June 8, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a list of questions, to Dr. Norman Mindrebo, a Board-certified orthopedic surgeon,
for a second opinion examination. It requested that he evaluate whether she continued to have
residuals/disability causally related to her accepted September 14, 2017 employment injury.
In a July 30, 2018 report, Dr. Mindrebo reported a benign physical examination. He opined
that the accepted conditions had fully resolved as there was no muscular atrophy in appellant’s
neck, shoulders, or upper extremities. Dr. Mindrebo thus opined that she no longer had any
employment-related residuals or disability resulting from the employment injury and she could
return to her date-of-injury position.
In an August 7, 2018 letter, OWCP requested that appellant’s treating physician
Dr. Kris Homb, a Board-certified physiatrist, review Dr. Mindrebo’s report and either state
agreement or provide rationalized medical opinion supported by clinical findings refuting
Dr. Mindrebo’s report. A copy of Dr. Mindrebo’s report was provided.
In a September 6, 2018 progress report, Dr. Homb opined that appellant continued to
progress in range of motion (ROM) concerning her cervical/thoracic/lumbar strain, that she should
continue with physical therapy, and that she would likely benefit from work conditioning prior to
return to work. He also assessed insomnia related to pain.
In an October 15, 2018 progress report, Dr. Homb related that appellant presented with
cervical/thoracic/lumbar spine pain. He noted that she still had limitations regarding cervical
ROM, and that she was to continue off work until her next follow-up visit. Dr. Homb noted that
appellant had pain-related insomnia, and depression.
OWCP also received disability slips from Dr. Homb dated September 6 and October 15,
2018, which continued to hold her off work and indicated that physical therapy should continue.
2

On October 31, 2018 OWCP revised the SOAF to include a more detailed description of
the physical requirements of appellant’s carrier technician position. A copy of the October 31,
2018 SOAF was sent to Dr. Mindrebo for a supplemental opinion regarding whether the findings
and opinions stated in his July 30, 2018 report had changed.
In a November 12, 2018 addendum report, Dr. Mindrebo reviewed the October 31, 2018
SOAF. He opined that appellant was able to perform her date-of-injury position as a carrier
technician without restrictions based on her benign July 30, 2018 examination.
OWCP subsequently received a November 12, 2018 progress report, wherein Dr. Homb
opined that appellant should remain off work due to cervical, thoracic, and lumbar strains and
cervical enthesopathy as she continued to have ROM cervical limitations. He also diagnosed
insomnia related to pain and depression.
In his December 10, 2018 progress report, Dr. Homb reported that appellant was status
post significant physical therapy and medications, without significant improvement in pain. He
noted that she had exhausted all conservative treatments that she was willing to pursue and there
was no need for surgical intervention. Dr. Homb held appellant off work and ordered a functional
capacity examination (FCE) to determine her long-term restrictions. He also continued to diagnose
insomnia related to pain and depression.
Appellant underwent an FCE on January 21, 2019. In a January 28, 2018 work capacity
evaluation (Form OWCP-5c), Dr. Homb indicated, based on the FCE results, that she reached
maximum medical improvement (MMI) and had permanent restrictions which rendered her only
able to perform a desk job with limited lifting.
In a February 11, 2019 notice, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she ceased to have residuals/disability
causally related to her accepted September 14, 2017 employment injury. It advised her that the
proposed action was based on Dr. Mindrebo’s reports of July 30 and November 12, 2018 and
afforded her 30 days to submit additional evidence or argument challenging the proposed
termination of her benefits.
Subsequently, in a February 5, 2019 letter, Dr. Homb noted his disagreement with
Dr. Mindrebo’s findings and medical opinions. He agreed with Dr. Mindrebo’s examination
findings that appellant had full strength, normal muscle stretch reflexes, and sensation. However,
Dr. Homb indicated that, at each of her visits (eight total), her examinations revealed diffuse
tenderness over her cervical paraspinals, trapezius, posterior scalenes, intrascapular muscles,
anterior scalenes, pectoralis muscles, and lumbar paraspinals. Also, during three of appellant’s
visits, trigger points were noted with palpation, for which she underwent trigger point injections
on November 12, 2018. Dr. Homb indicated that her ROM was decreased with neck rotation and
side bending, which the January 21, 2019 FCE examination confirmed. He opined that appellant
continued to suffer residuals of her cervical, thoracic and lumbar strains. Dr. Homb noted that it
was unusual for a patient to have chronic symptoms relating to muscle strains, and that he believed
that her prolonged symptoms converted into a fibromyalgia-like picture with related anxiety and
depression, difficulty sleeping, and overall stress over work which explained her ongoing pain and
limitation despite significant treatment and lack of significant findings on examination and
imaging. Based on his examination findings and the January 21, 2019 FCE, he opined that
3

appellant could not perform her carrier technician position, as the FCE revealed limitations on
lifting, walking, carrying activities, and cervical rotation. Dr. Homb opined that she could perform
a desk job with limited lifting.
Dr. Homb also submitted additional progress reports and OWCP-5c forms. In an updated
February 25, 2019 report, he opined that appellant’s severe pain, which was out of the typical time
frame and degree of pain expected with muscle strains, was consistent with a conversion into a
fibromyalgia-like picture, with anxiety/depression, difficulty sleeping, and stress over work, all
contributing. Dr. Homb explained that fibromyalgia often starts after a traumatic event which, in
this case, was the motor vehicle accident. He also reported that the FCE was deemed reliable and
appellant had provided “near maximal effort.”
By decision dated April 4, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date. It found that the weight of the medical evidence was
represented by the opinions of Dr. Mindrebo.
Appellant requested reconsideration on April 29, 2019.
In an April 24, 2019 report, Dr. Homb indicated that on September 14, 2017 appellant had
just removed her seat belt when a truck rear-ended her vehicle and she struck her head and back
on metal plates within the vehicle. He indicated that she presented to his clinic seven months after
her injury and was diagnosed with cervical, thoracic, and lumbar strains, consistent with the
accepted conditions, and insomnia due to her related pain. Dr. Homb indicated that appellant
continued to have tenderness on palpation and ROM, which the January 21, 2019 FCE confirmed.
He indicated that the January 21, 2019 FCE was deemed reliable and that she gave near maximal
effort during the testing. Dr. Homb stated that the FCE found that appellant was able to meet some
of her necessary job tasks with the exception of lifting, walking, carrying activities, and
positional/postural tolerances of cervical rotation. Thus, based on her job description and her
capabilities as noted on the FCE, he opined that she could not return to her previous position and
that she had ongoing residuals/disability related to her work injury. Dr. Homb further opined that,
while appellant was officially diagnosed with fibromyalgia, she appears to have developed a
fibromyalgia-like picture as she has ongoing cervical, thoracic and lumbar pain from her accepted
sprains/strains despite significant treatment. He indicated that fibromyalgia is a diagnosis of
widespread musculoskeletal pain with related sleep disturbance and psychiatric disturbances,
which is often preceded by a trauma or major life altering event. Dr. Homb explained that
appellant had a motor vehicle accident while at work and has since developed diffuse myofascial
pain in her cervical and lumbar spine regions, impaired sleep/insomnia, and, over the past six
months, depression and anxiety with a related increase in stress from not being able to work. He
indicated that this was consistent with fibromyalgia and her injury was likely the preceding
trauma/major life altering event that helped trigger her fibromyalgia-like syndrome. Dr. Homb
indicated that his suggestion of appellant having a fibromyalgia-like syndrome occurred on
January 28, 2019 approximately one week after her FCE, and was an effort to explain her ongoing
symptoms despite significant treatment with the addition of new developing symptoms.
By decision dated May 31, 2019, OWCP denied modification of the April 4, 2019
termination decision. It found that the weight of the medical evidence established that there were
no continuing residuals or disability due to the accepted employment injury.

4

On September 11, 2019 appellant, through her representative, requested that her claim be
expanded to include the additional diagnosed conditions of fibromyalgia, cervical enthesopathy,
and insomnia. In support of her request, appellant submitted progress reports from Dr. Homb
dated April 19 and August 19, 2019 which noted her pain from cervical/thoracic/lumbar strains,
cervical enthesopathy/fibromyalgia, insomnia related to pain, and depression.
In an August 30, 2019 letter, Dr. Homb also requested that OWCP expand the acceptance
of the claim to include the conditions of fibromyalgia, cervical enthesopathy, and insomnia to
appellant’s claim. He provided definitions of each diagnosis and how such diagnosis was based
on her history and/or examination findings. With regard to causation, Dr. Homb opined that
fibromyalgia often starts after a traumatic event, such as the motor vehicle accident in this case,
and the pain fails to improve in a timely manner. He noted that appellant started physical therapy
following the injury, but she continued to experience ongoing increasing symptoms, including
diffuse pain with related depression/anxiety, impaired sleep, and increase stress, all consistent with
fibromyalgia. Dr. Homb indicated that her cervical enthesopathy symptoms were present
throughout her treatment. He also indicated that he had previously requested that this become an
accepted diagnosis. With regard to the insomnia diagnosis, Dr. Homb indicated that appellant had
impaired sleep since the onset of injury, and that this was also consistent with her fibromyalgia
diagnosis.
In an October 30, 2019 letter, OWCP explained that it would treat appellant’s
September 11, 2019 letter as a request for reconsideration. It noted the deficiencies in Dr. Homb’s
August 30, 2019 letter with regard to causation and advised her of the type of evidence needed to
establish the claimed additional or consequential conditions. OWCP afforded appellant 30 days
to submit the necessary evidence.
In a November 29, 2019 report, Dr. Homb related that appellant developed fibromyalgia
after the claimed incident and that “this is the typical manner that one develops fibromyalgia,
especially after a trauma without any prior history of pain.” He then opined that she denied any
other major injuries that may have provoked these symptoms, therefore, the only logical
explanation was that it was directly related to the work injury. With regard to cervical
enthesopathy diagnosis, Dr. Homb indicated that the diagnosis was essentially the same diagnosis
of cervical sprain/strain. He opined that since appellant did not suffer from cervical enthesopathy
or sprain prior to her injury, this was a direct result of her motor vehicle accident. Finally,
Dr. Homb noted that the insomnia was directly related to the accepted conditions as she did not
suffer from impaired sleep prior to her injury. He indicated that pain from the accepted conditions
prevented appellant from sleeping appropriately and that her head contusion could also directly be
related to her impaired sleep.
By decision dated December 10, 2019, OWCP denied modification of its prior decision.
OWCP also denied expansion of the acceptance of the claim to include additional diagnosed
conditions.
On February 12, 2020 appellant, through her representative, requested reconsideration and
submitted additional evidence.
In a December 19, 2019 Form OWCP-5c, Dr. Homb diagnosed cervical, thoracic, and
lumbar strains. He opined that appellant was totally disabled and that her symptoms had increased
5

due to the termination of workers’ compensation benefits. Dr. Homb requested review of his
previous narrative reports.
By decision dated February 25, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.5 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include additional or consequential conditions of fibromyalgia, depression/anxiety,
insomnia, and cervical enthesopathy as a result of her accepted employment injury.
In his February 5, 24, and April 24 2019 reports, Dr. Homb noted that appellant’s
prolonged symptoms converted into a fibromyalgia-like picture with related anxiety, depression,
and difficulty sleeping. However, he did not offer a firm diagnosis of fibromyalgia. Instead, he
opined that appellant appeared to have developed a fibromyalgia-like picture or syndrome
following the motor vehicle accident. As these reports are equivocal in nature, they are of limited
probative value and insufficient to establish the claim.7
In his August 30, 2019 report, Dr. Homb diagnosed fibromyalgia. He explained that
fibromyalgia often starts after a traumatic event, such as the motor vehicle accident in this case,
and the pain fails to improve in a timely manner. Dr. Homb noted that appellant started physical
therapy following the injury, but she continued with ongoing symptoms including diffuse pain
with related depression/anxiety, impaired sleep, and increase stress, all consistent with
fibromyalgia. However, he again did not provide the necessary medical rationale to explain how

4

See S.L., Docket No. 19-0603 (issued January 28, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019); T.F.,
Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).
5

See S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

6

See S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
7

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

6

fibromyalgia or her other additional diagnosed conditions were physiologically caused by the
accepted injury.8
Similarly, in his November 29, 2019 report, Dr. Homb also indicated that appellant
developed fibromyalgia after the claimed incident, and that “this is the typical manner that one
develops fibromyalgia, especially after a trauma without any prior history of pain.” He then opined
that she denied any other major injuries that, may have provoked these symptoms, therefore, the
only logical explanation was that it was directly related to the work injury. The Board has held
that an opinion that a condition is causally related to an employment injury because the employee
was asymptomatic before the injury is insufficient, without adequate rationale, to establish causal
relationship.9
With regard to his cervical enthesopathy and insomnia diagnoses, Dr. Homb indicated, in
his August 30, 2019 report, that appellant’s cervical enthesopathy symptoms were present
throughout his time treating her. He also indicated, with regard to the insomnia diagnosis, that she
has had impaired sleep since the onset of injury and that this was also consistent with her
fibromyalgia diagnosis. However, Dr. Homb did not provide an unequivocal and rationalized
opinion explaining whether and how such conditions are related to the accepted conditions or the
claimed incident.10
In his November 29, 2019 report, he further opined that, since appellant did not suffer from
either cervical enthesopathy or sprain or insomnia prior to her injury, this was a direct result of her
motor vehicle accident. Dr. Homb also opined that the accepted contusion to the head could also
directly be related to her impaired sleep. However, the Board has held that the mere fact that
symptoms arise during a period of employment or produce symptoms revelatory of an underlying
condition does not establish a causal relationship between a diagnosed condition and employment
factors.11 A medical opinion must provide an explanation of how the specific employment incident
or employment factors physiologically caused or aggravated the diagnosed conditions.12 Thus,
Dr. Homb’s reports are insufficient to establish cervical enthesopathy and insomnia diagnoses as
causally related to the accepted conditions or the claimed incident.
As Dr. Homb’s opinions regarding causal relationship between the accepted injury and the
additional claimed conditions of fibromyalgia, depression/anxiety, insomnia, and cervical
enthesopathy were conclusory and unrationalized, the Board finds that they are insufficient to meet
appellant’s burden of proof to establish that the additional conditions should be accepted in her
claim.13

8

Id.

9

See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

10

Id.

11

A.S., Docket No. 19-1955 (issued April 9, 2020).

12

G.L., Docket No. 18-1057 (issued April 14, 2020).

13

P.A., Docket No. 18-0559 (issued January 29, 2020).

7

LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.14 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.15 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.16
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.17 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.18
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective April 4, 2019.
OWCP accepted appellant’s claim for neck sprain, back wall of thorax strain, back strain,
and head contusion. The Board finds that Dr. Mindrebo did not address whether her accepted head
contusion had resolved. Therefore, OWCP did not meet its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits with regard to that accepted condition.
The evidence of record further establishes that, a conflict of medical evidence exists
between Dr. Mindrebo, the second opinion physician, and Dr. Homb, appellant’s treating
physician, as to whether she had residuals from her accepted neck sprain, thorax strain, and back
14

S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
15
See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
16

D.G., supra note 17; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284,
295-96 (1988).
17

S.P., supra note 14; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
18

D.G., supra note 14; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).
19
5 U.S.C. § 8123(a). See C.R., Docket No. 19-1132 (issued October 1, 2020); B.S., Docket No. 19-0711 (issued
October 17, 2019); G.B., Docket No. 16-0996 (issued September 14, 2016) (where the Board held that OWCP
improperly terminated the claimant’s wage-loss compensation and medical benefits as there was an unresolved
conflict of medical opinion between her treating physician and a second opinion specialist).

8

strain conditions as of April 4, 2019. In his July 30, 2018 report and November 12, 2018
addendum report, Dr. Mindrebo reviewed the SOAF. He found, based on his examination, that
there were no objective findings to support ongoing residuals from appellant’s employment-related
conditions. Dr. Mindrebo opined that she was able to perform her date-of-injury position as a
carrier technician without restrictions based on her benign July 30, 2018 examination.
Appellant’s treating physician, Dr. Homb, however, submitted progress reports which
noted ROM limitations in appellant’s neck and back. He also indicated that, based on the
January 21, 2019 FCE, she had reached MMI and had permanent restrictions which rendered her
only able to perform a desk job with limited lifting. In his February 5, 2019 letter, Dr. Homb
agreed that, while appellant had full strength, normal muscle stretch reflexes, and sensation, she
continued to exhibit diffuse tenderness over her cervical paraspinals, trapezius, posterior scalenes,
intrascapular muscles, anterior scalenes, pectoralis muscles, and lumbar paraspinals and her ROM
was decreased with neck rotation and side bending, which the January 21, 2019 FCE examination
confirmed. Thus, he opined that she continued to suffer residuals of her cervical, thoracic and
lumbar strains. Based on his examination findings and the January 21, 2019 FCE, Dr. Homb also
opined that appellant could not perform her carrier technician position as the FCE revealed
limitations on lifting, walking, carrying activities, and cervical rotation. He thus opined that she
could perform a desk job with limited lifting.
As Dr. Mindrebo and Dr. Homb disagreed as to whether appellant’s accepted neck sprain,
back wall of thorax strain, and back strain had resolved, there is an unresolved conflict of medical
evidence as to whether she has residuals or disability due to the accepted employment injury. The
Board, thus, finds that OWCP has not met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.20
CONCLUSION
The Board finds that appellant has not established that the acceptance of her claim should
be expanded to include additional or consequential conditions of fibromyalgia, depression/anxiety,
insomnia, and cervical enthesopathy as a result of her accepted employment injury. The Board
further finds that OWCP has not met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 4, 2019.21

20

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

21

Id.

9

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: June 24, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10