United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, LAKEWOOD POST
OFFICE, Lakewood, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1685
Issued: May 25, 2021

Case Submitted on the Record

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

JURISDICTION
On September 30, 2020 appellant, through counsel, filed a timely appeal from April 30 and
July 31, 2020 merit decisions 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.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish intermittent
disability for the period December 7 through 20, 2019 causally related to his accepted January 13,
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.

2018 employment injury; and (2) whether appellant has met his burden of proof to establish a
recurrence of disability beginning November 4, 2019 causally related to his accepted employment
injury.
FACTUAL HISTORY
On January 13, 2018 appellant, then a 40-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he broke a bone in his right wrist when he slipped and fell
descending a stair while in the performance of duty. He stopped work on January 13, 2018.
OWCP accepted the claim for a closed intra-articular fracture of the distal end of the right radius.
On January 24, 2018 appellant underwent an open reduction and internal fixation of the right radial
wrist. OWCP paid him wage-loss compensation on the supplemental rolls for intermittent time
lost from work beginning February 28, 2018.3 Appellant returned to full-time modified
employment on August 29, 2018. He worked part time beginning September 5, 2018 and resumed
full-time modified employment on October 3, 2018. On February 12, 2019 appellant’s physician
released him to resume work without restrictions.
In a report dated November 4, 2019, Dr. Sami Moufawad, a Board-certified physiatrist,
noted appellant’s history of a broken wrist with surgical repair and discussed his current
complaints of wrist pain, particularly in colder weather. He advised that appellant had
compensated for his right wrist pain by overusing his left elbow. Dr. Moufawad diagnosed a
closed intra-articular die-punch fracture of the right radius and lateral epicondylitis of the left
elbow. He indicated that he had discussed “work restrictions to avoid repeated motion and also
avoid working in colder weather.”
In a report dated November 7, 2019, Dr. Moufawad again discussed appellant’s complaints
of increased pain in his right wrist with repeated motion and when working outside in cold
temperatures. He indicated that appellant had experienced pain over the left lateral epicondyle due
to compensating for his right wrist pain. Dr. Moufawad noted that he required frequent breaks
while working to rest his forearm. He diagnosed a closed intra-articular die-punch fracture of the
right radius and lateral epicondylitis of the left elbow. Dr. Moufawad opined that appellant should
work indoors when temperatures were below 45 degrees. In an accompanying note of even date,
he indicated that he was treating appellant for continued right wrist pain following a January 13,
2018 right wrist fracture. Dr. Moufawad related that he should work inside when the temperature
was lower than 45 degrees. In a duty status report (Form CA-17) of the same date, he provided
restrictions of no working outdoors when the temperature was below 45 degrees.
Dr. Moufawad submitted a similar report and Form CA-17 on November 15, 2019. He
noted that appellant could not work outside when the temperature was below 40 degrees. In the
CA-17, Dr. Moufawad advised that he could not work outside if the temperature was below 45
degrees.

3
By decision dated July 25, 2019, OWCP granted appellant a schedule award for 11 percent permanent impairment
of the right upper extremity. The period of the award ran for 34.32 weeks from February 20 to October 18, 2019.

2

On December 10, 2019 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for intermittent time lost from work for the period November 23 through
December 6, 2019.
In a letter dated December 12, 2019, OWCP advised appellant that he should file a notice
of recurrence (Form CA-2a) if he required work restrictions, noting that he had performed full
duty since February 2019. It informed him that complaints of pain were insufficient in the absence
of objective findings to support employment limitations.
On December 23, 2019 appellant filed a Form CA-7 requesting intermittent wage-loss
compensation from December 7 through 20, 2019.
In a development letter dated December 23, 2019, OWCP requested that appellant specify
whether he had lost time from employment due to work restrictions or as a result of obtaining
medical treatment. It advised that, if he had lost time due to work restrictions, his physician should
provide objective findings supporting the increased restrictions. OWCP afforded appellant 30
days to submit the necessary information.
Thereafter, OWCP received a December 16, 2019 Form CA-17 from Dr. Moufawad based
on an examination of even date. Dr. Moufawad indicated that, when the temperature was below
45 degrees, appellant could work outdoors up to one hour at a time delivering packages.
By decision dated February 6, 2020, OWCP denied appellant’s claim for disability from
December 7 through 20, 2019.
On February 12, 2020 appellant, through counsel, requested a telephone hearing before a
representative of OWCP’s Branch of Hearings and Review.
On March 16, 2020 appellant filed a Form CA-2a alleging that on November 4, 2019 he
sustained a recurrence of disability causally related to his accepted January 13, 2018 employment
injury. He related that he could not perform his usual employment duties when the temperature
was under 45 degrees.
In a development letter dated March 23, 2020, OWCP advised appellant of the definition
of a recurrence of disability and the type of evidence necessary to establish that he had sustained
a recurrence of employment-related disability. It afforded him 30 days to submit additional
evidence.
In a December 16, 2019 progress report, Dr. Moufawad evaluated appellant for pain in his
right wrist and forearm. He noted that appellant could work no more than one hour outside when
the temperature was below 45 degrees. Dr. Moufawad again advised that appellant had been
compensating for his right wrist pain by using his left elbow. He diagnosed a right radius closed
intra-articular die-punch fracture and lateral epicondylitis of the left elbow. In a closing note,
Dr. Moufawad indicated that appellant should work indoors when the temperature was below 40
degrees.
On February 18, 2020 Dr. Moufawad provided a similar report. He indicated that appellant
could work outdoors except when temperatures were under 45 degrees and diagnosed a right radius
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closed intra-articular die-punch fracture and lateral epicondylitis of the left elbow. Dr. Moufawad
noted that his grip strength was weaker on the right and that he compensated for pain in his right
wrist by using his left elbow.
By decision dated April 30, 2020, OWCP found that appellant had not established a
recurrence of disability beginning November 2019 causally related to his January 13, 2018
employment injury. It advised appellant that he could file a claim if he believed that he had new
employment-related right wrist problems or a left elbow condition.
On May 5, 2020 counsel requested a telephone hearing before a representative of OWCP’s
Branch of Hearings and Review.
A telephone hearing was held on June 3, 2020 regarding OWCP’s February 6, 2020
decision. Appellant noted that he was requesting compensation for intermittent time lost because
he was unable to work outside because of the low temperature.
In an April 15, 2020 report based on a telehealth appointment, Dr. Moufawad noted that
appellant continued to have pain and sensitivity to cold in the right wrist and left elbow pain due
to compensating for his right wrist pain. He diagnosed a right radius closed intra-articular diepunch fracture and lateral epicondylitis of the left elbow. Dr. Moufawad advised that appellant
should continue to work outdoors no more than one hour at a time if the temperature was below
45 degrees, but noted that he would not need those restrictions in summer months.4
By decision dated July 31, 2020, OWCP’s hearing representative affirmed the February 6,
2020 decision. She found that Dr. Moufawad had not provided a reasoned opinion explaining why
appellant was unable to work in the cold weather.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 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.6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
for work as a result of the accepted employment injury.7 Whether a particular injury causes an

4

Dr. Moufawad noted that appellant had to work indoors if the temperature was below 40 degrees.

5

Supra note 2.

6
See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
7
C.E., Docket No. 19-1617 (issued June 3, 2020); M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S.
Jefferson, 57 ECAB 183 (2005).

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employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish intermittent
disability for the period December 7 through 20, 2019. The Board further finds that the case is not
in posture for decision regarding entitlement to compensation for time lost to obtain medical
treatment on December 16, 2019.
On December 23, 2019 appellant filed a Form CA-7 requesting compensation for
intermittent time lost from work from December 7 through 20, 2018. He claimed seven hours of
compensation on December 16, 2019.
In support of his claim, appellant submitted a December 16, 2019 progress report from
Dr. Moufawad. Dr. Moufawad discussed his complaints of right wrist and forearm pain, especially
with colder weather. He found that appellant could work no more than one hour outside when the
temperature was below 45 degrees. Dr. Moufawad also noted that he had pain over the lateral
epicondyle of the left elbow which he attributed to overuse as a result of him compensating for his
right elbow pain. He diagnosed a right radius closed intra-articular die-punch fracture and lateral
epicondylitis of the left elbow. In a Form CA-17 of the same date, Dr. Moufawad opined that
appellant could only work outside one hour at a time or to deliver packages when the temperatures
were below 45 degrees. However, in his December 16, 2019 reports, he did not provide medical
rationale explaining why appellant was unable to work when temperatures were below 45 degrees
8

See D.W., Docket No. 18-0644 (issued November 15, 2018); K.C., Docket No. 17-1612 (issued October 16, 2018).

9
20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); S.T., Docket No. 18-0412 (issued
October 22, 2018).
10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See D.P., Docket No. 18-1439 (issued April 30, 2020); D.G., Docket No. 18-0597 (issued October 3, 2018).

12

J.K., Docket No. 19-0488 (issued June 5, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005).

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other than to note his complaints of increased right wrist pain in cold weather.13 The Board has
held that subjective complaints of pain are insufficient to establish disability from employment.14
Additionally, medical limitations based solely on the fear of a possible future injury are also
insufficient to support payment of compensation.15 As Dr. Moufawad failed to provide a
rationalized opinion substantiating disability from work supported by objective findings, his
reports are insufficient to meet appellant’s burden of proof.16
The remaining medical evidence fails to address the claimed periods of intermittent
disability from December 7 through 20, 2019 and thus lacks probative value and is insufficient to
meet appellant’s burden of proof.17
The Board further finds, however, that OWCP failed to determine whether appellant was
entitled to up to four hours of compensation for wage loss while obtaining medical services on
December 16, 2019. OWCP’s procedures provide that wages lost for compensable medical
examination or treatment may be reimbursed.18 The evidence must establish that a claimant
attended an examination or treatment for the accepted work injury on the dates claimed in order
for compensation to be payable. For a routine medical appointment, a maximum of four hours
may be allowed.19 The case will therefore be remanded for OWCP to consider payment for the
appropriate amount of wage-loss compensation for time lost for a medical appointment on
December 16, 2019.
LEGAL PRECEDENT -- ISSUE 2
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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.20 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.21

13

See J.N., Docket No. 20-1030 (issued November 20, 2020).

14

B.L., Docket No. 19-0852 (issued October 18, 2019); G.J., Docket No .18-1335 (issued March 22, 2019).

15

V.G., Docket No. 18-0936 (issued February 6, 2019).

16

See G.J., supra note 14.

17

K.R., Docket No. 20-0681 (issued January 12, 2021); M.A., Docket No. 19-1119 (issued November 25, 2019).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19 (February 2013).

19

Id. at Chapter 2.901.19(a); E.W., Docket No. 17-1988 (issued January 28, 2019).

20

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

21

Id.

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OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.22
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.23 Where no such rationale is present,
the medical evidence is of diminished probative value.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning November 4, 2019 causally related to his accepted employment injury.
In a report dated November 4, 2019, Dr. Moufawad discussed his examination findings
and treatment plan; however, he did not provide an opinion on causal relationship. Thus, this
report is of no probative value and is insufficient to establish appellant’s claim.25
On November 7, 2019 Dr. Moufawad noted that appellant experienced increased pain in
his right wrist when working outside in cold weather and with repeated motion. He also indicated
that he had left elbow pain as a result of compensating for the pain in his right wrist. Dr. Moufawad
diagnosed a closed intra-articular die-punch fracture of the right radius and lateral epicondylitis of
the left elbow. He advised that appellant should work indoors when temperatures were below 45
degrees. Dr. Moufawad attributed appellant’s inability to work to increased pain. As discussed,
subjective complaints of pain are insufficient to establish disability from employment.26
Dr. Moufawad did not explain with rationale why appellant’s condition had worsened such that he
had work restrictions when the temperature fell below 45 degrees. A mere conclusion without the
necessary rationale is insufficient to meet a claimant’s burden of proof.27

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).
23

L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

24

M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

25

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

26

B.L., Docket No. 19-0852 (issued October 18, 2019).

27

See D.M., Docket No. 17-1052 (issued January 24, 2019).

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In a December 16, 2019 progress report, Dr. Moufawad provided the same diagnoses and
opined that appellant should work no more than one hour outside when the temperature was below
45 degrees. On February 18 and April 15, 2020 he noted that appellant could work outdoors except
when temperatures were below 45 degrees. Dr. Moufawad did not provide a rationalized medical
opinion substantiating disability from employment and thus these reports are insufficient to meet
appellant’s burden of proof.28
Appellant submitted Form CA-17 reports dated November 7 and 15 and
December 16, 2019. However, the Form CA-17 reports do not contain a clear opinion on whether
the accepted employment injury caused disability from employment for the claimed period;
consequently, they are of no probative value on the issue of causal relationship and are insufficient
to establish appellant’s claim.29
As appellant has not submitted rationalized medical evidence establishing recurrence of
disability commencing November 4, 2019, the Board finds that he has not met his burden of proof.
He 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 met his burden of proof to establish intermittent
disability from employment for the period December 7 through 20, 2019. The Board also finds
that the case is not in posture for decision regarding entitlement to compensation for time lost to
obtain medical treatment on December 16, 2019. The Board further finds that appellant has not
met his burden of proof to establish a recurrence of disability beginning November 4, 2019
causally related to his accepted employment injury.

28

B.L., supra note 26.

29

J.K., Docket No. 18-0854 (issued June 5, 2020); A.A., Docket No. 19-0957 (issued October 22, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further proceedings consistent with this decision of the Board. The April 30, 2020 decision is
affirmed.
Issued: May 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

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Appearances:
Daniel E. Broussard, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1352
Issued: October 11, 2007

Case Submitted on the Record

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

JURISDICTION
On April 24, 2007, appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated January 24, 2007 which denied his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
inguinal hernia causally related to a February 11, 2005 employment incident.
FACTUAL HISTORY
On February 11, 2005 appellant, then a 55-year-old laundry machine operator, filed a
Form CA-1, traumatic injury claim, alleging that on that day he sustained injury while pulling
sheets from a machine. The laundry supervisor, Gregory Nelson, indicated that appellant could
have a preexisting hernia. Appellant stopped work that day. In support of his claim, he
submitted a witness statement from a coworker, Ronald L. Allen, who stated that on

February 11, 2005, while unloading washing machines, he heard appellant yell and grab at his
stomach, stating that he had pulled something. In an employing establishment clinic report,
Dr. Lelia Ruth F. Angel, a Board-certified internist, noted the history of injury and diagnosed a
small umbilical hernia. She provided restrictions that appellant not squat or lift, pull or push
more than five pounds until he was seen by his personal physician. In a duty status report dated
February 14, 2005, Dr. Alejandro Perez, Board-certified in family medicine, diagnosed a twocentimeter umbilical hernia and responded “yes” to a form question as to whether the diagnosis
was due to the injury. He advised that appellant could not work until evaluated by a surgeon. In
a February 14, 2005 statement, Kenneth W. Valentine, Safety & Health Manager at the
employing establishment, advised that there was not enough evidence to support the claim.
By letter dated February 22, 2005, the Office informed appellant of the evidence needed
to support his claim. In reports dated February 23, 2005, Dr. Robert C. Smith noted physical
examination findings of an umbilical hernia.1 He reported that appellant stated that the hernia
became enlarged and painful on February 11, 2005 when he was pulling stuck laundry.
Dr. Smith advised that appellant could return to modified duty on February 23, 2005 and
recommended surgery. Appellant returned to light duty on February 24, 2005. In a statement
dated March 1, 2005, he described the February 11, 2005 incident, stating that he and Mr. Allen
were pulling sheets from a washing machine when he felt pain. In a March 2, 2005 statement,
Mr. Nelson described the washing machine and advised that appellant and Mr. Allen were
reaching in and pulling sheets out of the machine when the incident occurred. On March 9, 2005
Dr. Smith advised that appellant could continue modified work.
By decision dated April 1, 2005, the Office found the February 11, 2005 incident
occurred but denied the claim on the grounds that the medical evidence did not establish that his
hernia condition was caused by the incident.
On April 29, 2005 appellant requested a hearing and submitted a February 14, 2005
report from Dr. Perez who noted a history that appellant was pulling sheets when he sustained
pain. An umbilical hernia was diagnosed. In an attending physician’s report also dated
February 14, 2005, Dr. Perez noted a history that appellant was pulling wet sheets when he felt a
severe burning pain around his belly button. He advised that appellant had a small asymptomatic
umbilical hernia, found on October 14, 2004, and noted that the hernia was now two centimeters
and painful. Dr. Perez checked a form box, “yes,” indicating that the condition was employment
related and advised that he was referring appellant to a surgeon. In reports dated March 30,
2005, Dr. Smith noted a history that appellant reported that his umbilical hernia started on
December 11, 2004 and advised that there was no significant change on physical examination.
He again recommended surgery and no change in his modified work status.
On August 15, 2006 appellant, through his attorney, advised that he would like a
telephonic hearing that was held on November 3, 2006. At the hearing appellant stated that he
worked light duty until he had surgery, which was paid for with his health insurance. He was
then off work for about five weeks and, after another period of light duty, returned to full duty.
In a report dated April 19, 2005, Dr. James N. Parrish, a Board-certified surgeon, diagnosed an
1

Dr. Smith’s credentials could not be ascertained.

2

umbilical hernia, which he repaired on April 25, 2005. On May 25, 2005 he advised that
appellant could return to limited duty on May 30, 2005 with a 25-pound lifting restriction, and on
June 29, 2005 advised that appellant could return to full duty. In a December 16, 2005 report,
Dr. Parrish noted the history of injury that on February 11, 2005 appellant felt a tearing sensation
in his umbilicus when he was pulling sheets at work. He diagnosed an umbilical hernia and
advised, “Given this history, it is likely that there is a causal relationship between the tearing
sensation [appellant] experienced while exerting himself at work and his subsequent symptoms
related to his umbilical hernia.”
By decision dated January 24, 2007, an Office hearing representative affirmed the
April 1, 2005 decision. She found the incident established but that the medical evidence was
insufficient to establish causal relationship because Dr. Parrish did not appear to be aware of the
previously diagnosed hernia.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
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. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 In order to determine whether an employee sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component is whether the employee actually
experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
2

5 U.S.C. §§ 8101-8193.

3

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

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Tracey P. Spillane, 54 ECAB 608 (2003).

6

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

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is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The evidence establishes that appellant experienced the February 11, 2005 work incident,
pulling laundry from a machine. Appellant, however, failed to meet his burden of proof to
establish that he sustained an inguinal hernia caused by this incident. All physicians of record
diagnosed an inguinal hernia. The February 11, 2005 report of Dr. Angel and the reports of
Dr. Smith do not contain an opinion regarding the cause of appellant’s hernia. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship,9 and Dr. Smith also reported a history that
appellant’s hernia started on December 11, 2004, several months before the accepted
employment incident. These reports are therefore of diminished probative value. Likewise, the
reports submitted by Dr. Perez and Dr. Parrish are insufficient to meet appellant’s burden of
proof. While Dr. Perez provided “yes” responses to form questions indicating that the diagnosed
hernia was employment related, he provided no further explanation. It is well established that
the checking of a box “yes” in a form report, without additional explanation or rationale, is
insufficient to establish causal relationship.10 The physician also advised that in October 14,
2005 he had diagnosed an asymptomatic inguinal hernia. When a factor of employment
aggravates, accelerates or otherwise combines with a preexisting, nonoccupational pathology, the
employee is entitled to compensation.11 Dr. Perez provided no explanation as to how the
February 11, 2005 employment incident aggravated the previously diagnosed hernia to the
degree that appellant had to work limited duty and needed surgery. His opinion is therefore
insufficient to meet appellant’s burden. In his December 16, 2005 report, Dr. Parrish advised
that it was likely that there was a causal relationship between the February 11, 2005 incident and
appellant’s subsequent symptoms related to his hernia. He, however, did not note awareness of
the preexisting asymptomatic inguinal hernia or explain how or why the February 11, 2005
employment incident impacted this condition.
In order to establish entitlement, the physician must provide a narrative description of
what happened on the date in question so that the Office can find that he or she was relying on a
7

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

8

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

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Deborah L. Beatty, 54 ECAB 340 (2003).

11

See Chris Wells, 52 ECAB 445 (2001).

4

proper history of injury. Because appellant did not submit a reasoned medical opinion
explaining how the February 11, 2005 employment incident caused or aggravated his inguinal
hernia, he did not establish the critical element of causal relationship.12
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an inguinal hernia causally related to the February 11, 2005 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2007 be affirmed.
Issued: October 11, 2007
Washington, DC

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

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

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

12

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

5


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

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

Docket No. 08-2554
Issued: June 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 10, 2008, affirming a schedule award
for a three percent permanent impairment to the left arm. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment to his
left arm causally related to his employment injury.
FACTUAL HISTORY
On December 12, 2005 appellant, then a 57-year-old letter carrier, sustained injuries in a
slip and fall while in the performance of duty. The Office initially accepted the claim for chest
wall contusion and left rib fractures. Appellant worked intermittently and retired from federal
employment on December 1, 2007. Based on a December 19, 2007 report from an Office
medical adviser, the Office also accepted multiple neuromas of left intercostal nerves. On
February 5, 2008 appellant underwent a left thoracotomy (excision of the left intercostal nerve)
by Dr. Mark Katlic, an orthopedic surgeon.

On February 19, 2008 appellant filed a claim for a schedule award. By letter dated
March 3, 2008, the Office referred the medical evidence to an Office medical adviser for an
opinion as to whether appellant had an employment-related permanent impairment to a
scheduled member or function of the body.
In a report dated March 15, 2008, the Office medical adviser noted that appellant had
pain that required nerve blocks and a resection of the nerve between the ribs causing the pain.
The medical adviser stated that, because the pain was in the direction of the left upper extremity,
he recommended a three percent permanent impairment based on Figure 18-1 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment. He also stated that
there was no other methodology under the A.M.A., Guides to make this calculation. The
medical adviser did not provide a date of maximum medical improvement.
By decision dated March 19, 2008, the Office issued a schedule award for a three percent
permanent impairment to the left arm. The period of the award was 9.36 weeks from
December 1, 2007.
Appellant requested an oral hearing before an Office hearing representative, which was
held on July 10, 2008. In a report dated April 28, 2008, Dr. Katlic reported that appellant had
been pain free since the surgery. By decision dated September 10, 2008, the hearing
representative affirmed the March 19, 2008 schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2
ANALYSIS
The schedule award in this case was based on the March 15, 2008 report from the Office
medical adviser, who reviewed the medical evidence. Under Figure 18-1 of the A.M.A., Guides
a pain-related impairment of up to three percent can be awarded.3 While this section should not
be used for any condition that can be adequately rated on the basis of impairment rating methods
given in other chapters of the A.M.A., Guides, the medical adviser stated that no other
methodology for rating impairment was appropriate.4 The medical adviser provided a probative
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

A.M.A., Guides 574, Figure 18-1.

4

Id. at 571. Cf. J.T., 59 ECAB ___ (Docket No. 07-1111, issued October 4, 2007), where the physicians did not
explain why the use of Chapter 18 for a pain-related impairment was appropriate.

2

medical opinion on the issue, and there was no other medical evidence with an opinion of a
greater impairment to the left arm under the A.M.A., Guides. The Board finds the medical
evidence does not establish more than a three percent permanent impairment to the left arm.
On appeal, appellant argues that his award should run from December 1, 2007 to
April 28, 2008, because he was still under a physician’s care until that date. The period of a
schedule award is not determined by the length of medical care. The number of weeks of
compensation for a schedule award is determined by the compensation schedule at 5 U.S.C.
§ 8107(c). For complete loss of use of the arm, the maximum number of weeks of compensation is
312 weeks. Since appellant’s impairment was three percent, he is entitled to three percent of 312
weeks, or 9.36 weeks of compensation from the date appellant reaches maximum medical
improvement from residuals of the employment injury.5
CONCLUSION
The medical evidence does not establish more than a three percent permanent impairment
to the left arm.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 10 and March 19, 2008 are affirmed.
Issued: June 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

Albert Valverde, 36 ECAB 233, 237 (1984). The date of maximum medical improvement was not well
developed by the Office in this case. The commencement of the schedule award on the date appellant retired,
December 1, 2007, does not represent an adverse determination in view of the subsequent medical evidence showing
appellant was pain-free following surgery in February 2008. There is no indication that using a later date would
result in additional compensation.

3


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

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

Docket No. 08-607
Issued: August 8, 2008

Case Submitted on the Record

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

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs’ hearing representative dated September 18, 2007, which
affirmed a January 23, 2007 decision terminating appellant’s compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation benefits effective January 23, 2007 on the grounds that her disability due to her
accepted condition had ceased; and (2) whether appellant established that she continued to have
residuals and partial disability on and after January 23, 2007 causally related to the June 17, 2002
employment injury.
FACTUAL HISTORY
On June 17, 2002 appellant, then a 35-year-old mail handler, filed a traumatic injury
claim alleging that on that date she injured her neck and shoulders while lifting trays. She

stopped work on June 18, 2002. The Office accepted the claim for cervical radiculopathy. By
letter dated August 29, 2002, it placed appellant on the periodic rolls for temporary total
disability. On February 6, 2003 appellant was offered the modified position of mail handler
technician working four hours per day, which she accepted. She returned to work for four hours
per day on February 7, 2003, stopped on February 10, 2003 and returned to work on
April 22, 2003.
By decision dated July 23, 2003, the Office issued a loss of wage-earning capacity
determination. It found that the actual earnings appellant received as a modified mail handler
technician beginning April 22, 2003 fairly and reasonably represented her wage-earning
capacity.
By letter dated November 1, 2006, the Office referred appellant, together with the case
record, a statement of accepted facts and a list of questions, to Dr. Gary C. Freeman, a Boardcertified orthopedic surgeon, for a second opinion medical examination.1 In the accompanying
statement of accepted facts, it advised Dr. Freeman that it had accepted cervical
radiculopathy/neuritis as resulting from her June 17, 2002 employment injury.
In a
December 18, 2006 medical report, Dr. Freeman provided a history of the June 17, 2002
employment injury and appellant’s medical treatment. He provided a detailed review of the
medical record. Dr. Freeman reported no sensory or motor defect bilaterally in the upper
extremities and there was evidence of “significant symptom magnification.” He noted appellant
“asserts generalized nonanatomical, nonfocal discomfort thoughout the entire upper, mid, and
low back areas in response to light palpation, percussion, lateral compression and axial loading.”
Basically, Dr. Freeman found appellant’s low back examination to be “similarly unremarkable
regarding clinical radiculopathy.” He opined that appellant “had no significant injury other than
perhaps a very limited soft tissue event consistent with the biomechanics and pathophysiologic
analysis of the asserted injury event mechanism.” Dr. Freeman opined that appellant is capable
of performing her regular duties full time.
On December 22, 2006 the Office proposed to terminate appellant’s compensation
benefits. It determined that she no longer had any disability or residuals due to her accepted
June 17, 2002 employment injury.
On December 22, 2006 the Office received a December 14, 2006 duty status report by
Dr. Qaisar J. Yusuf, a treating physician, who diagnosed cervical radiculopathy as employment
related and depression as another disabling condition. Dr. Yusuf indicated that appellant was
capable of working four hours per day with restrictions.
On January 19, 2007 appellant noted her disagreement with the Office’s proposal to
terminate her benefits and requested additional time to provide medical evidence.
By decision dated January 23, 2007, the Office terminated appellant’s compensation
effective that date. It found that the evidence of record was insufficient to establish that she had
any continuing residuals or total disability causally related to the June 17, 2002 employment.

1

The Board notes that the record contains evidence relevant to another claimant.

2

The Office accorded determinative weight to Dr. Freeman’s December 18, 2006 second opinion
medical report.
In a letter dated February 17, 2007, appellant requested an oral hearing before an Office
hearing representative, which was held on July 25, 2007.
On March 26, 2007 the Office received a December 14, 2006 clinic note by Dr. Yusuf
who diagnosed acute lumbosacral, acute thoracolumbar strains/sprains, sacroiliitis and
lumbosacral radiculopathy. A physical examination revealed marked tenderness in the
lumbosacral area and across the back.
On July 12, 2007 the Office received an undated report by Dr. Yusuf, a July 18, 2007
electromyograph report and a July 13, 2007 magnetic resonance imaging (MRI) scan. Dr. Yusuf
diagnosed depression, anxiety disorder, C5-6 cervical disc protrusion, degenerative spinal
arthritis, L4-5 and L5-S1 lumbar disc bulges, chronic pain and fibromyalgia. He opined that
appellant was unable to work full time due to her medical conditions and chronic pain.
Dr. Yusuf noted a recent MRI scan shows C5-6 degenerative disc disease and a C5-6 disc
protrusion.
Subsequent to the July 25, 2007 hearing, the Office received an undated report by
Dr. Yusuf, a July 18, 2007 electromyograph report and a July 13, 2007 MRI scan. Dr. Yusuf
opined that appellant “continues to suffer with chronic neck problems to the upper and mid[-]
back area and the thoracic region.” He noted that a recent MRI scan and electromyograph both
showed continuing cervical problems. Based upon his evidence, Dr. Yusuf concluded that
appellant “has problems in the base of her neck that continue to cause her neck pain and chronic
recurrent bouts of pain.”
By decision dated September 18, 2007, an Office hearing representative affirmed the
January 23, 2007 termination decision. The hearing representative found that appellant no
longer had any residuals or total disability due to her June 17, 2002 employment injury based on
Dr. Freeman’s December 18, 2006 medical report.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.3
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.4

2

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006); George A. Rodriguez, 57 ECAB
224 (2005).
3

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Elaine Sneed, 56 ECAB 373 (2005).

4

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

3

The Office procedure manual provides as follows:
“When the [Office] medical adviser, second opinion specialist or referee
physician renders a medical opinion based on a statement of accepted facts which
is incomplete or inaccurate or does not use the statement of accepted facts as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical radiculopathy due to a June 17,
2002 employment injury. Appellant stopped work on June 18, 2002 and was placed on the
periodic rolls for temporary total disability by letter dated August 29, 2002. On February 6,
2003 she was offered the modified position of mail handler technician working four hours per
day, which appellant accepted. Appellant accepted a modified job offer as a mail handler
technician and returned to work for four hours per day on February 7, 2003. She stopped work
on February 10, 2003 and returned to her modified part-time work on April 22, 2003. On
July 23, 2003 the Office issued a loss of wage-earning capacity decision which found that her
modified job represented her wage-earning capacity.
On November 1, 2006 the Office referred appellant for another second opinion evaluation
with Dr. Freeman. Based on his December 18, 2006 report, the Office terminated appellant’s
compensation. The Board finds, however, that Dr. Freeman’s opinion is of diminished probative
value and thus, not sufficient to constitute the weight of the medical evidence.
The Office, in its referral of appellant to Dr. Freeman, requested that he provide an
opinion regarding whether appellant had any objective findings of cervical or right upper
extremity condition, whether she was able to work more than four hours per day and whether she
continued to have any residuals of her accepted June 17, 2002 employment injury. In the
accompanying statement of accepted facts, the Office advised Dr. Freeman that it had accepted
that appellant sustained the condition of cervical radiculopathy/neuritis due to her June 17, 2002
employment injury. To assure that the report of a medical specialist is based upon a proper
factual background, the Office provides information to the physician through the preparation of a
statement of accepted facts.6 As noted under legal precedent, the Office procedure manual
provides that any medical opinion must accept as correct the statement of accepted facts and
offer an opinion clearly within that statement. An opinion which fails to do this is unresponsive
and irrelevant.
In a report dated December 18, 2006, Dr. Freeman opined that appellant had symptom
magnification. He found no indication that appellant had sustained anything more “than perhaps
a very limited soft tissue event” based upon the “biomechanics and pathophysiologic analysis of
the asserted injury event mechanism.” Dr. Freeman found appellant’s low back examination to
5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
6

Helen Casillas, 46 ECAB 1044 (1995).

4

be “similarly unremarkable regarding clinical radiculopathy.” He, therefore, did not find that
appellant had no further residuals of her accepted cervical radiculopathy, but instead determined
that she had only experienced a soft tissue injury such as a sprain/strain due to the June 17, 2002
employment injury. To the extent that Dr. Freeman’s opinion is outside the framework of the
statement of accepted facts, it is insufficient to meet the Office’s burden of proof to establish that
appellant has no further employment-related residuals of her accepted condition.7
The Office did not indicate that it was attempting to rescind acceptance of appellant’s
claim based on Dr. Freeman’s report. However, it did not inform appellant that it was
contemplating rescission or actually rescinding acceptance of her accepted cervical radiculopathy
in its termination decision. As the Board has held, the Office must inform a claimant correctly
and accurately of the grounds on which a rejection rests so as to afford the claimant an
opportunity to meet, if possible, any defect appearing therein.8 It may not find that residuals of
an accepted employment injury have ceased by a particular date when the evidence upon which
the decision rests tends to support that, in fact, the injury never occurred.
Accordingly, the Board finds that the Office did not meet its burden of proof to terminate
appellant’s compensation benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits effective January 23, 2007 as the weight of the medical evidence was
insufficient to establish that she had no further employment-related disability as of that date.9

7

See M.W., 57 ECAB 710 (2006); Douglas M. McQuaid, 52 ECAB 382 (2001) (medical reports must be based
on a complete and accurate factual and medical background and medical opinions based on an incomplete or
inaccurate history are of little probative value).
8

John M. Pittman, 7 ECAB 514 (1955); see also Avalon C. Bailey, 56 ECAB 223 (2004) (Office procedures note
that the reasoning behind the Office’s evaluation should be clear enough for the reader to understand the precise
defect of the claim and the kind of evidence which would overcome it).
9

In view of the Board’s reversal of the Office’s termination decision, the issue of whether appellant had residuals
on and after January 23, 2007 is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2007 is reversed.
Issued: August 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 13-1708
Issued: November 13, 2013

Case Submitted on the Record

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

JURISDICTION
On June 14, 20131 appellant filed a timely appeal of a December 19, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim.
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 that she sustained
a traumatic injury on August 2, 2010 in the performance of duty.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days of OWCP’s decision. One
hundred and eighty days from December 19, 2012 was June 17, 2013. Since using June 19, 2013, the date the
appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is June 14, 2013, which renders the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 13, 2010 appellant, then a 51-year-old mail processor, filed a traumatic injury
claim alleging on August 2, 2010 a cage gate fell on her neck, shoulders and back while in the
performance of her federal duties. She sought treatment at the emergency room on August 17,
2010 and received a diagnosis of acute back pain from a nurse practitioner. In a note dated
August 17, 2010, the emergency department noted that appellant complained of pain in her
posterior cervical area, right trapezius, right scapular area, right subscapular area, right mid back
and right lower back. Appellant stated that she was injured on the job on August 2, 2010 when a
large metal cage fell from above her onto her neck and back. Dr. Syed Tariq, a Board-certified
internist, noted that she had chronic pain for which she took medication. He provided
differential diagnoses of arthritis, myofascial strain, pulled muscle, sciatica and spinal injury.
On March 18, 2011 Dr. A.G. Lipede, a surgeon, diagnosed serious work-related neck to
left hand condition.
On August 29, 2011 appellant filed a recurrence of disability alleging on February 17,
2011 that she sustained a recurrence of disability due to her accepted September 10, 2005 and
August 2, 2010 employment injuries. She stated that she returned to limited-duty work
following her employment injury with a sit down job and lifting restriction of 10 pounds.
Appellant was also restricted in her pushing and pulling and machine work. She stated on
February 15, 2011 that her supervisor instructed her to label the machine for the casuals.
Appellant stated that she attempted to perform this task for 15 minutes and developed neck pain.
Appellant submitted a narrative statement and alleged that she had conditions in her feet,
legs, neck, arm, left hand, right shoulder and lower back. She attributed her condition to her
work at the employing establishment.
In a letter dated September 9, 2011, OWCP stated that appellant’s August 2, 2010 claim
had been administratively approved for a limited amount of medical expenses. It informed her
that a decision would be made on her recurrence claim once her initial claim was adjudicated.
OWCP requested additional medical evidence in support of appellant’s August 2, 2010 traumatic
injury claim. It informed her by letter dated October 7, 2011 that her claimed recurrence of
disability dated August 29, 2011 would be developed as a new traumatic injury occurring on
February 15, 2011 under a separate claim number.3
By decision dated October 19, 2011, OWCP denied appellant’s August 2, 2010 traumatic
injury claim finding that she had not submitted medical evidence of a diagnosed condition
resulting from this incident. It noted that back pain was not an acceptable diagnosed condition.
Appellant requested reconsideration on September 12, 2012. She submitted responses to
OWCP’s request for additional factual information and described the falling of the cage gate.
Appellant also submitted additional medical evidence. Cervical myelogram and computerized
tomography (CT) dated June 3, 2011 demonstrated disc herniation at C6-7 and moderate neural
foraminal stenosis.
A magnetic resonance imaging (MRI) scan dated July 18, 2008
3

OWCP assigned claim file number xxxxxx853 to this new traumatic injury.

2

demonstrated mild cervical spondylosis with no large disc protrusion. A MRI scan dated
March 5, 2011 demonstrated nerve encroachment due to mild disc osteophyte complex at C6-7.
Dr. Lawrence Kinsella, an internist, completed a report on September 12, 2011 and
diagnosed small fiber neuropathy, neuropathic pain and C6-7 herniated disc with foraminal
encroachment. Dr. Brett A. Taylor, a Board-certified orthopedic surgeon, completed a report
dated August 24, 2011 and noted appellant’s six-year history of back and neck pain. Appellant
described two previous work injuries. She noted that in 2005 she was pushing a 1,000 pound
metal container that rolled back on her resulting in bilateral Achilles repairs and in August 2010
a metal cage fell on her neck and shoulder. Dr. Taylor reviewed the CT and other diagnostic
studies which demonstrated disc herniation at C6-7 but no cervical radiculopathy.
Dr. Thomas K. Lee, a Board-certified orthopedic surgeon, completed a report on
April 12, 2012 and described appellant’s employment duties on February 15, 2011. Appellant
also reported her 2005 pushing injury. Dr. Lee diagnosed left C6-7 herniated nucleus pulposus.
In reports dated May 3, 2012, he mentioned appellant’s 2010 cage injury and attributed her
herniated disc to her February 15, 2011 traumatic injury.
By decision dated December 19, 2012, OWCP reviewed the merits of appellant’s claim
and modified the prior decision, finding that she had filed a timely claim and had submitted
evidence of a medical condition which she attributed to her incident on August 2, 2010.
However, it further found that she had not submitted the necessary medical opinion evidence to
establish a causal relationship between her diagnosed condition and her accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.6
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”7 To determine
4

5 U.S.C. §§ 8101-1893.

5

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

6

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

7

20 C.F.R. § 10.5(ee).

3

whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
ANALYSIS
Appellant alleged on August 2, 2010 that the top of a cage fell on her injuring her neck,
back and shoulders in the performance of duty. She has submitted medical evidence diagnosing
a herniated disc at C6-7. However, the Board finds that appellant has not submitted the
necessary medical opinion evidence to establish a causal relationship between her diagnosed
condition and her accepted employment incident.
In support of her claim for neck and back injury, appellant submitted reports from
Drs. Kinsella, Taylor and Lee. Each of these physicians diagnosed herniated disc at C6-7,
however, none of the physicians explained the relationship of this condition to appellant’s work
injuries. Dr. Taylor noted in 2011 appellant’s six-year history of back and neck pain and two
work injuries. He did not opine whether her herniated disc was caused by or contributed to
either of her work injuries. Without an opinion on the relationship between appellant’s
diagnosed condition and her work incident, this report is insufficient to meet her burden of proof.
Dr. Lee also diagnosed C6-7 disc herniation and mentioned appellant’s claimed August 2,
2010 cage injury and 2005 accepted pushing injury, as well as her alleged 2011 traumatic injury.
He, however, attributed her herniated disc to her February 15, 2011 traumatic injury which, as
noted above, is under a separate OWCP file number, rather than to the August 2, 2010
employment incident.
As appellant has not submitted the necessary medical opinion evidence to establish a
causal relationship between her diagnosed condition and her August 2, 2010 employment
incident, she has failed to meet her burden of proof in establishing a traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to submit the necessary medical evidence to
establish her traumatic injury claim.

8

John J. Carlone, 41 ECAB 354 (1989).

9

J.Z., 58 ECAB 529 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2012 decision Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Mission Valley, CA, Employer
__________________________________________

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Appearances:
Max Gest, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 15-0972 &
15-1005
Issued: September 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 17, 2015 appellant, through counsel, filed a timely appeal from two
December 4, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2

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

When counsel filed the appeals on March 17, 2015, the employee was living. Counsel timely requested an oral
argument. On June 15, 2016 the Board issued an order granting the request for oral argument. In a July 26, 2016
letter, counsel advised the Board that the employee died in October 2015. He withdrew his request for oral
argument and requested that the Board issue a decision on the written record. Counsel requested that the Board
consider both claims conjunctively. He requested that the employee’s son be substituted as appellant and provided
documentation that the son was appointed trustee of the employee’s estate. A proper appeal having been filed and a
representative designated, the appeal may proceed to adjudication. Lorie C. Josey, 25 ECAB 85 (1973) (designated
representative of deceased appellant requested a decision by the Board); see Albert F. Kimbrell, 4 ECAB 662 (1952)
(appellant’s widow sought to be substituted as his representative for the purpose of pursuing his appeal).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the employee met his burden of proof to establish total
disability for work commencing October 1, 2010 due to accepted degenerative cervical disc
disease and a cervical spine sprain under OWCP File No. xxxxxx336; and (2) whether he met his
burden of proof to establish bilateral carpal tunnel syndrome, bilateral ulnar neuritis at Guyon’s
canal, and right cubital tunnel syndrome causally related to factors of his federal employment
under OWCP File No. xxxxxx457.
FACTUAL HISTORY
OWCP accepted that on or before January 22, 2008 the employee, then a 66-year-old
orthopedic surgeon on a five-year, fee-based appointment, sustained a cervical spine sprain and
cervical degenerative disc disease in the performance of duty, caused by repetitive writing,
typing, and the stresses of performing physical examinations. The employee stopped work on
September 30, 2010, the day his fee-basis appointment ended. He was not offered a new
appointment.4 The employee did not return to work. OWCP assigned the claim File No.
xxxxxx336.
The employee provided records regarding preexisting cervical spine injuries. He
sustained a right paracervical muscle strain in a June 3, 2000 motor vehicle collision. On
July 27, 2001 the employee fell asleep while driving and was involved in a roll-over accident.
Dr. Thomas Webster, Board-certified in emergency medicine, diagnosed an acute neck strain
with preexisting degeneration of the C4 disc, chronic cervical spondylosis, and bilateral neural
foraminal stenosis at C6-7.
Dr. Joel Heiser, an attending Board-certified orthopedic surgeon, provided a January 22,
2008 report diagnosing preexisting cervical degenerative disc disease. He related the employee’s
complaints of neck pain when he used a computer or telephone at work. Dr. Heiser permanently
limited the employee to using a computer for no more than 10 minutes an hour, and “continue
using the current dictating system.” He renewed these restrictions on December 15, 2009.5
In an August 31, 2010 report, Dr. Heiser noted that the employee was involved in a
July 18, 2010 motor vehicle accident, increasing his neck pain and headaches. He diagnosed
multilevel cervical spine degenerative disc disease, “aggravated by recent MVA [motor vehicle
accident], July 18, 2010.” Dr. Heiser recommended continued restrictions. On December 20,
2010 he explained that despite three cervical spine injuries in motor vehicle accidents, the
employee attributed his neck symptoms to computer use and repeated neck flexion at work.
3

5 U.S.C. § 8101 et seq.

4

In a September 23, 2010 letter, the employing establishment advised the employee that his fee-basis
appointment expired on September 30, 2010. His services would not be continued as his appointment would expire.
5

A July 30, 2010 magnetic resonance imaging (MRI) scan showed multilevel cervical degenerative disc disease
without focal disc herniations.

2

Dr. Heiser diagnosed “[a]ggravation of DDD [degenerative disc disease] of the C[ervical]-spine
from work at the [employing establishment] in the past few years.”
Dr. Neville Alleyne, an attending Board-certified orthopedic surgeon, provided a
January 27, 2011 report relating the employee’s contention that his intermittent neck pain, due to
motor vehicle accidents in 2000 and 2001, increased when the employing establishment switched
to a computer-based report system in 2008. The employee was in a rear-end collision on July 18,
2010, causing an exacerbation of neck pain. On examination Dr. Alleyne found limited cervical
motion, a positive Tinel’s sign at the right elbow, and point tenderness over the mid-to-lower
cervical spine. He diagnosed preexisting degenerative disc disease without evidence of
radiculopathy or myelopathy, mild exacerbation of neck pain due to June 2000, March and
July 2001, and July 18, 2010 motor vehicle accidents, and a “significant exacerbation in neck
pain by medical examination for [employing establishment] patients over the last five years.”
Dr. Alleyne opined that performing examinations, documenting range of motion “for hands, and
doing a lot of repetitive bending,” carrying charts, reading charts, and reading x-rays, “resulted in
extreme exacerbations in his neck pain, headaches and pain radiating into his shoulders.” He
found appellant permanently disabled from these activities.
In a May 23, 2011 progress note, Dr. Alleyne commented that, although the employee
had retired, he continued to experience neck pain with any prolonged flexion. On October 6,
2011 Dr. Alleyne newly reported that the employee sustained an unspecified occupational injury
on January 22, 2008. He reasoned that the employee’s work tasks were the primary cause of his
continuing condition as his symptoms decreased after the car accidents, but he “continued to
experience daily symptomatology with cervical flexion and extension while reviewing charts and
working on the computer keyboard.”
On September 12, 2011 the employee filed a claim for ongoing total disability
compensation (Form CA-7) commencing October 1, 2010.
By decision dated January 12, 2012, OWCP denied the claim for disability compensation
on and after October 1, 2010, based on a lack of medical evidence supporting causal relationship.
The employee disagreed and, in a January 31, 2012 letter, through counsel, requested an oral
hearing before a representative of OWCP’s Branch of Hearings and Review.
At the hearing, conducted telephonically on March 26, 2012, the employee noted that he
retired from medical practice in 1988, but accepted an appointment with the employing
establishment in 2005. He used January 22, 2008 as the date of injury as this was the date that
Dr. Heiser first provided work restrictions for computer use. The employee provided additional
medical evidence.6
In an August 27, 2010 report, Dr. Stephen P. Nichols, an attending Board-certified
orthopedic surgeon, related the employee’s account of a July 18, 2010 motor vehicle accident,
with “excruciating neck pain” at impact. The employee explained that, since the accident, it was
“much more difficult for him” to write reports at work. The employee also described June 2000,
March and July 2001 car accidents, with neck pain after the second incident. On examination
6

Following the hearing, counsel submitted a March 20, 2012 brief asserting that the employee was entitled to
compensation based on the reports of his attending physicians. He also provided minor corrections to the hearing
transcript on April 12, 2012.

3

Dr. Nichols noted a normal cervical lordosis, midline tenderness to palpation from the occiput to
C7, and limited cervical motion. He diagnosed cervical sprain/strain syndrome with concurrent
degenerative disc disease.
The employee provided a request for reasonable accommodation (Americans with
Disabilities Act Checklist) which he signed on August 31, 2010. In an attached statement, the
employee explained that he had degenerative cervical disc disease. He requested to continue to
use the dictation system rather than change to voice recognition software, which created errors
necessitating long periods of computer use to correct. This form was not signed or
acknowledged by the employing establishment.
In a February 28, 2012 report, Dr. Jacob E. Tauber, an attending Board-certified
orthopedic surgeon, noted appellant’s June 2000, March 2001, and July 2010 motor vehicle
accidents, and related the employee’s account of dictating reports and conducting evaluations at
work. On examination Dr. Tauber observed restricted cervical motion, and a positive right elbow
Tinel’s sign. He diagnosed a permanent aggravation of multilevel cervical degenerative disc
disease with facet arthropathy. Dr. Tauber noted that cervical flexion while performing data
entry or examinations at work aggravated the degenerated cervical discs and facets. He opined
that the increase in the employee’s workload during the final year of his employment exceeded
his “capacities from an anatomic standpoint,” causing a permanent aggravation.
By decision dated June 11, 2012 under File No. xxxxxx336, an OWCP hearing
representative set aside OWCP’s January 12, 2012 decision and remanded the case for referral to
a second opinion specialist. OWCP found that Dr. Tauber’s opinion was of sufficient probative
value to require further development.
On September 7, 2012 OWCP obtained a second opinion from Dr. David Easley, a
Board-certified orthopedic surgeon. Dr. Easley reviewed the medical record and a statement of
accepted facts. He noted the history of June 2000, March 2001, and July 2010 motor vehicle
accidents, and a January 22, 2008 “cervical sprain with aggravation of cervical degenerative disc
disease due to his work-related activities as a physician, specifically, conducting physical
examinations, taking notes, dictating, and using a computer.” On examination Dr. Easley noted
severely restricted cervical motion, and a positive Tinel’s sign at the medial elbow bilaterally.
He diagnosed cervical degenerative disc disease and severe bilateral ulnar neuritis at Guyon’s
canal. Dr. Easley opined that as the employee was asymptomatic prior to January 22, 2008, his
work duties “aggravated the underlying cervical degenerative disc disease.” He found that the
aggravation was permanent, “predicated upon the fact that his symptoms of cervical pain, if any,
were minimal prior to the commencement of this type of work.” Dr. Easley opined that the
employee was totally and permanently disabled.
Dr. Alleyne provided an August 29, 2012 update, diagnosing “advanced cervical
spondylosis without radiculopathy or myelopathy.” He opined that appellant “had a preexisting
condition aggravated by his employment, which has now resulted in him having chronic
disabling cervical pain.” On April 3, 2013 Dr. Alleyne opined that work factors permanently
aggravated the employee’s cervical spine condition because his symptoms increased during his
federal employment. He found appellant totally and permanently disabled for work beginning
October 1, 2010 due to an increase of symptoms.

4

Dr. Tauber noted on February 25, 2013 that electrodiagnostic tests were needed to
determine whether the employee’s upper extremity symptoms were due to his cervical spine
condition or to peripheral nerve entrapment.7 On June 18, 2013 he diagnosed cervical disc
disease, cervical radiculopathy, bilateral carpal tunnel syndrome, bilateral Guyon’s canal
entrapment, right cubital tunnel syndrome, right medial epicondylitis, and left lateral
epicondylitis. Dr. Tauber opined that the employee had a “classic double crush syndrome,” with
peripheral and cervical spine nerve entrapments.
On July 8, 2013 the employee filed a claim for ongoing wage-loss compensation (Form
CA-7) commencing October 1, 2010 under File No. xxxxxx336. As the form did not contain
wage information, on July 15, 2013 OWCP requested additional information from the employing
establishment regarding his wages and benefits.8
On August 7, 2013 the employee filed an occupational disease claim (Form CA-2)
alleging that he sustained bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and
bilateral ulnar neuritis at Guyon’s canal in the performance of duty on or before
September 7, 2010. OWCP assigned the claim File No. xxxxxx457. The employee asserted that
the reports of Dr. Tauber and Dr. Easley, submitted under File No. xxxxxx336, were sufficient to
establish causal relationship. The employing establishment controverted the claim, noting that
the he did not report “any type of work-related injury or illness” before the end of his
appointment on September 30, 2010.
In a September 12, 2013 letter, OWCP advised the employee of the additional evidence
needed to establish his wage-loss claim under File No. xxxxxx336. It noted that the medical
record did not explain how he became disabled for work on October 1, 2010, although he
performed full duty to the end of his appointment on September 30, 2010.
In an October 4, 2013 letter, OWCP advised the employee of the type of additional
evidence needed to establish his claim for upper extremity conditions. It requested a rationalized
report from his attending physician, and the employee’s statement on the etiology of the claimed
conditions.
The employee provided a statement noting that he worked from two to four days a week
during his appointment, with dictation at home taking an additional two days a week. He first
noticed right elbow problems in 2009, but did not receive a diagnosis until he saw Dr. Easley in
2012. The employee submitted additional reports from Dr. Tauber, finding his condition
unchanged. On October 21, 2013 Dr. Tauber opined that repetitive work duties caused and
permanently aggravated the employee’s bilateral carpal tunnel syndrome, bilateral ulnar neuritis
at Guyon’s canal, and right cubital tunnel syndrome.
7

June 12, 2013 ultrasound studies showed left elbow arthritic changes and edema with microruptures of the right
common flexor tendon. June 3, 2013 nerve conduction velocity and electromyography studies demonstrated
moderate bilateral carpal tunnel syndrome, bilateral moderate ulnar nerve compression at Guyon’s canal, and right
moderate ulnar compression at or near the medial epicondyle.
8

The employee provided documents indicating that he received approximately $19,800.00 in unemployment
insurance benefits from October 17, 2010 to September 17, 2011, after his five-year appointment ended on
September 30, 2010. The employee continued to file wage-loss compensation claims for the period November 4,
2013 to July 1, 2014.

5

By decision dated November 19, 2013, OWCP denied the claim for bilateral upper
extremity conditions under File No. xxxxxx457. It accepted that the employee wrote notes,
dictated reports, used a computer, and performed examinations as alleged. OWCP found,
however, that the employee’s physicians did not sufficiently explain how and why the accepted
work factors would cause the claimed conditions.
By decision dated November 22, 2013 under File No. xxxxxx336, OWCP denied
appellant’s claim for compensation commencing October 1, 2010, finding that the medical
record did not establish a spontaneous worsening of the accepted conditions on or about that
date. It found that the employee stopped work on October 1, 2010 because his appointment
ended on September 30, 2010, not because of an objective worsening of the accepted cervical
sprain and degenerative cervical disc disease.
In December 2, 2013 letters, counsel requested an oral hearing regarding the
November 19 and 22, 2013 decisions.9
At the hearing, held September 10, 2014, the employee explained that he retired from
medical practice in 1988, but then worked at the employing establishment from September 2005
to September 2010. He contended that he did not have cervical spine symptoms prior to working
at the employing establishment and he first developed upper extremity symptoms in 2008. The
employee stated that he had an implied agreement with his supervisor permitting him to use the
dictation service in return for being assigned more difficult cases. He alleged that the employing
establishment ignored his August 2010 request for reasonable accommodations.
Following the hearing, counsel provided comments to the hearing transcript. He also
submitted a May 25, 2010 appraisal from Dr. Hong B. Huynh, the employee’s supervisor, noting
that Dr. Heiser permanently restricted the employee to using the computer no more than 10
minutes an hour. Dr. Huynh explained that the unit staff was required to transition from
dictating reports to using computer templates, significantly increasing the physician’s computer
usage. The employee also submitted a copy of the physical examination protocol he performed
at work, detailing the measurements needed to assess each joint, and sample chart notes with
identifying information blocked out.
In a December 17, 2013 report, Dr. Tauber opined that repetitive writing, handling paper,
computer keyboarding, and “copying” caused the employee’s peripheral nerve entrapments. He
concluded that the employee’s ongoing cervical spine symptoms were “unquestionably” work
related. He contended that the employee should not be penalized for being misdiagnosed with
cervical radiculopathy, whereas electrodiagnostic studies later established peripheral nerve
entrapment. On February 19, 2014 Dr. Tauber reiterated that the employee had objective
electrical studies confirming bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and
bilateral ulnar neuritis at Guyon’s canal. He attributed these conditions to repetitive arm motions
while keyboarding, preparing reports, making notes, and examining patients. Dr. Tauber noted
on August 19, 2014 that the employee remained unchanged.
9

Counsel submitted a July 21, 2014 brief, asserting that the medical evidence was sufficient to establish that the
employee was totally disabled for work on and after October 1, 2010 due to the accepted cervical conditions. He
also contended that the August 31, 2010 request for accommodation established that the employing establishment
was aware that the upper extremity conditions claimed under File No. xxxxxx457 were also work related.

6

By decision dated December 4, 2014 under File No. xxxxxx336, an OWCP hearing
representative affirmed OWCP’s November 22, 2013 decision, finding that the medical and
factual evidence did not demonstrate that the employee was disabled for work on and after
October 1, 2010 due to factors of his federal employment. The hearing representative noted that,
although the employee asserted at the hearing that he did not have neck symptoms prior to
beginning work in September 2005, the medical record established that he did. Additionally, the
employee worked full duty with no limitations for more than two years prior to stopping work at
the end of his appointment.
By decision dated December 4, 2014 under File No. xxxxxx457, an OWCP hearing
representative affirmed OWCP’s November 9, 2013 decision, finding that the medical and
factual evidence was insufficient to establish that work factors caused or aggravated any upper
extremity condition. The hearing representative found that there was no contemporaneous
medical evidence for the period September 2005 to September 2010 documenting any upper
extremity condition.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA10 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”11 This meaning, for brevity, is expressed as disability for
work.12 For each period of disability claimed, the employee has the burden of proving that he
was disabled for work as a result of the accepted employment injury.13 Whether a particular
injury caused an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by the preponderance of the reliable, probative, and
substantial medical evidence.14
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision and must be remanded for
further development.
OWCP accepted that the employee sustained a cervical spine sprain and cervical
degenerative disc disease in the performance of duty on or before January 22, 2008. His fiveyear appointment ended on September 30, 2010, at which time he stopped work and did not

10

5 U.S.C. § 8102(a).

11

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
12

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

13

See William A. Archer, 55 ECAB 674 (2004).

14

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

7

return. On September 12, 2011 the employee filed a claim for total disability compensation
beginning October 1, 2010.
The employee submitted medical evidence in support of his claim. Dr. Heiser limited
computer use to 10 minutes an hour as of January 22, 2008. He opined that a July 18, 2010
motor vehicle accident aggravated the employee’s degenerative disc disease. However,
Dr. Heiser did not indicate that the employee’s accepted cervical conditions worsened as of
October 1, 2010, or that he was totally disabled for work as of that date. His opinion is therefore
of diminished value in establishing the claimed period of disability.
Dr. Nichols noted on August 27, 2010 that the employee related that after experiencing
“excruciating neck pain” in the July 18, 2010 motor vehicle accident, it was “much more
difficult for him” to write reports at work. Although he did not specifically address the
employee’s condition as of September 30, 2010, he clearly opined that the employee’s symptoms
as of late August 2010 were attributable to the July 18, 2010 motor vehicle accident and not to
work factors. Dr. Nichols’ opinion thus tends to negate the employee’s assertion of causal
relationship.
Dr. Alleyne opined on January 27, 2011 that the employee’s cervical spine pain was
aggravated by 2000, 2001, and 2010 motor vehicle accidents and by examining patients at the
employing establishment. He reported that the employee stopped work on October 1, 2010 as
his symptoms had been increasing. However, Dr. Alleyne did not find an objective change in the
accepted conditions as of October 1, 2010. Also, although he noted that neck flexion continued
to cause cervical spine pain two years after the employee stopped work, he did not attribute the
employee’s continuing symptoms to work factors.15
Dr. Tauber first examined the employee on February 28, 2012. He opined that cervical
flexion at work permanently aggravated cervical degenerative disc disease, but did not
specifically address whether the employee was disabled for work as of October 1, 2010.
Dr. Tauber’s opinion is of little relevance in establishing the claimed period of disability as he
provided no opinion on that specific issue.16
The employee also submitted factual evidence which he asserted established partial
disability for work prior to September 30, 2010. In a May 25, 2010 appraisal, Dr. Huynh, the
employee’s supervisor, noted that Dr. Heiser limited the employee’s computer use to 10 minutes
an hour, but that unit staff would soon be required to type their reports rather than dictate them.
However, Dr. Huynh did not indicate that the employee was on limited or modified duty. On
August 31, 2010 one month before his appointment ended on September 30, 2010, the employee
signed a Request for Reasonable Accommodation. However, the employing establishment did
not sign or acknowledge the request. There is no evidence that the employing establishment
received or considered it.
OWCP undertook further development of the claim to determine whether appellant had
established the conditions of bilateral carpal tunnel surgery, bilateral ulnar neuritis at Guyon’s

15

See W.S., Docket No. 15-0602 (issued August 11, 2016); Willie M. Miller, 53 ECAB 697, 701 (2002).

16

Id.

8

canal, and right cubital tunnel syndrome in the performance of duty and whether he was totally
disabled commencing October 1, 2010.
Appellant was referred to Dr. Easley, for a second opinion, to determine the relationship
between the injury and the claimed employment factors. Dr. Easley opined on September 7,
2012 that, because the employee’s cervical degenerative disc disease was asymptomatic prior to
January 22, 2008, his work duties must have aggravated the condition. He found the employee
permanently disabled for work on that basis. While the Board has held that a temporal
relationship alone is insufficient to establish causal relationship,17 the Board further finds that
Dr. Easley’s second opinion report is based upon an accurate medical history, his review of the
statement of accepted facts, and provides an unequivocal opinion supportive of the employee’s
claim. While he failed to provide a sufficiently well-reasoned medical opinion in support of
causation of additional medical conditions and commencement of total disability, he nonetheless
provided opinions sufficient to require further development of the issues.18
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done. Once it
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.19
When OWCP selects a physician for an opinion on the employee’s employment-related
injury, it has an obligation to secure, if necessary, clarification of the physician’s report and to
have a proper evaluation made.20 Because it referred the employee to a second opinion
physician, it has the responsibility to obtain a report that will resolve the issue of whether he
developed further medical conditions or was totally disabled from work.21 After receiving
Dr. Easley’s September 7, 2012 report, OWCP was required to seek clarification on those
aspects of his medical opinion report that lacked sufficient rationale. As it did not do so, OWCP
did not properly discharge its responsibilities in developing the record.22 Without such
information, an informed decision cannot be reached on the relevant issue.
The Board finds that OWCP failed to fully develop the employee’s claim once it
determined that a second opinion examination was required in the case. Therefore, the two
December 4, 2014 merit decisions will be set aside and remanded for further development of the
medical evidence and a reasoned opinion from Dr. Easley as to the issues of medical conditions
causally related to the stipulated work duties and the period of total disability, if any, causally

17

Louis R. Blair, Jr., 54 ECAB 348 (2003).

18

See E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

19

William J. Cantrell, 34 ECAB 1223 (1983).

20

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

21

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

22

Richard F. Williams, 55 ECAB 343 (2004).

9

related all accepted conditions in the claim.23 Following any necessary further development,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 4, 2014 are set aside and remanded for further
development.
Issued: September 27, 2016
Washington, DC

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

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

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

23

Due to the Board’s finding as to the lack of proper claim development, both issues one and two are remanded
for further development by OWCP.

10