United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Naperville, IL, Employer
__________________________________________

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

Docket No. 08-1988
Issued: April 8, 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 July 15, 2008 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated October 26 and December 12, 2007 and April 25, 2008 which
reduced her compensation benefits to zero due to her failure to cooperate with vocational
rehabilitation. 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 the Office properly reduced appellant’s wage-loss compensation
effective October 28, 2007 because of her failure to fully cooperate with vocational
rehabilitation.
FACTUAL HISTORY
On November 21, 2002 appellant, then a 46-year-old route carrier, sustained a neck
injury when a truck backed into her postal vehicle while in the performance of duty. By letter

dated December 4, 2002, the Office accepted her claim for cervical trapezius strains. The claim
was also accepted for torticollis. Appellant also suffers from high blood pressure.
By letter dated August 30, 2006 to Dr. Alan G. Shepard, an attending Board-certified
neurologist, the employing establishment inquired as to whether appellant would be able to
perform modified-duty work. He responded that a functional capacity evaluation was necessary
to determine whether appellant could handle the job.
By letter dated September 20, 2006, the employing establishment referred appellant to the
MacNeal Clearing Clinic for a functional capacity evaluation.
By letter dated April 25, 2007, the Office referred appellant to a rehabilitation counselor
for the development of a vocational rehabilitation program. In a report dated May 28, 2007,
Ms. Julie L. Base, a vocational counselor noted that appellant had not engaged in any type of
work activity for over four years. Appellant believed that she was too disabled to engage in any
type of work activity and was “outraged” that the Office would consider her a candidate for
vocational rehabilitation. Ms. Base noted that appellant was frequently argumentative and
noncooperative. Appellant stated that she would not undergo a functional capacity evaluation
and that Ms. Base should obtain results from a prior evaluation performed in November 2006.
However, she would not sign the authorization form allowing the consultant to obtain this
medical report. Ms. Base also noted that appellant advised her of severe pain during the
November 2006 functional capacity evaluation and that the facility advised her that she was not a
candidate to undergo an evaluation due to her symptomology.
By letter dated June 6, 2007, the Office informed appellant that it had been advised that
she had impeded the rehabilitation efforts of her vocational counselor in that she refused to
undergo a functional capacity evaluation. Appellant had 30 days from the date of the letter to
give a good reason for not participating in the vocational rehabilitation effort and, that if she did
not comply, the rehabilitation effort would be terminated and action taken to reduce her
compensation.
In a June 29, 2007 report, Ms. Base noted she received a June 27, 2007 telephone call
from appellant’s husband, who indicated that appellant was scheduled for a functional capacity
evaluation the following day. She spoke with a physical therapist from MacNeal Clearing
Clinic, who indicated that appellant was seen in November 2006 but that a full functional
capacity evaluation was not performed due to her complaints of pain and the fact that her blood
pressure was significantly elevated. On June 28, 2007 Ms. Base indicated that she again
contacted MacNeal Clearing Clinic and was informed that appellant’s husband called the clinic
in the morning and left a message that his wife was cancelling the appointment due to illness.
On June 27, 2007 appellant’s husband called and stated that appellant was in considerable pain
and took pain medication. He informed Ms. Base that during the night of June 27, 2007 and the
morning of June 28, 2007 appellant was vomiting and he was unsure if this was a result of the
pain medication or the flu. Ms. Base spoke with a representative from MacNeal Clearing Clinic,
who advised her that in the future appellant must pick another facility for evaluation as this was
her third cancellation without adequate notice.

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By letter dated July 25, 2007, appellant was referred to a different facility for a functional
capacity evaluation scheduled for August 9, 2007. On August 9, 2007 she reported for the
functional capacity evaluation at Orthosport Physical Therapy. The physical therapist recorded
appellant’s history and noted that she stated that she was in pain. When she greeted appellant
and directed her by touching her shoulder, appellant said, “Don’t touch me.” The therapist
indicated that it would be necessary to touch her during the evaluation. Appellant’s blood
pressure was 150/78, her breathing was heavy and rapid and she appeared agitated. The therapist
noted that appellant did appear to have right-sided torticollis in the neck and what appeared to be
tremors in her upper extremities. She noted difficulty in getting measurement due to jerking
movements. The therapist advised that appellant had good muscle tone in the upper and lower
extremities. She noted that appellant was unable to complete a straight leg raise while sitting,
although she appeared to have shaved her legs. The therapist noted that she could not complete
the evaluation because appellant stated that she was in too much pain and was going to the
hospital. Appellant left the clinic with her husband.
By decision dated October 26, 2007, the Office reduced appellant’s compensation to zero
effective October 28, 2007 due to her refusal to participate with vocational rehabilitation.
On November 5, 2007 appellant requested reconsideration. She contended that she tried
to complete the August 9, 2007 testing but was unable to do so due to severe pain. Appellant
stated that she never refused to take a functional capacity evaluation or attend a physician’s
appointment.
In a note dated November 1, 2007, Dr. Jean E. Bourand, a Board-certified family
practitioner, indicated that appellant was under her care and unable to attend the functional
capacity test on June 28, 2007 but was able to attend on July 12, 2007.
By decision dated December 12, 2007, the Office found that the evidence was
insufficient to warrant modification of the October 26, 2007 decision.
By letter dated March 3, 2008, appellant, through her representative, requested
reconsideration. She submitted an emergency physician report dated August 9, 2007 from
Dr. Guy Miller, an osteopath, who indicated that appellant presented herself with a complaint of
neck pain, spasm and left side chest pain. Dr. Miller diagnosed spasmodic torticollis, atypical
chest pain and left bundle branch on electrocardiogram.
In a February 15, 2008 note, Dr. Bourand indicated that, after reviewing the emergency
record of August 9, 2007, it was clear that appellant was in severe pain due to her torticollis and
could not complete the functional capacity evaluation that date.
A new functional capacity evaluation was ordered and appellant went to MedVoc
Rehabilitation on August 1, 2008. Appellant attended but the test was not completed. She was
ordered to obtain a cardiac clearance. In an April 22, 2008 report, the vocational consultant
indicated that none of appellant’s several functional capacity evaluations have been completed
due to her subjective complaints of pain or noncontrolled hypertension. The consultant indicated
that, without this test, there was no basis on which to determine her work capabilities.

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By decision dated April 25, 2008, the Office denied modification of the
December 12, 2007.
LEGAL PRECEDENT
Section 8104(a) of the Act1 pertains to vocational rehabilitation and provides that the
Secretary of Labor may direct a permanently disabled individual whose disability is compensable
under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for
furnishing the vocational rehabilitation services. Under this section of the Act, the Office has
developed procedures which emphasize returning partially disabled employees to suitable
employment and determining their wage-earning capacity.2 If it is determined that the injured
employee is prevented from returning to the date-of-injury job, vocational rehabilitation services
may be provided to assist in returning the employee to suitable employment.3
Section 8113(b) of the Act further provides that, if an individual without good cause fails
to apply for and undergo vocational rehabilitation when so directed under section 8104 the
Office, after finding that in the absence of such failure the wage-earning capacity of the
individual would likely have increased substantially, may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been her wageearning capacity in the absence of the failure, until the individual in good faith complies with the
directions of the Office.4 Office procedures require that prior to reduction of compensation a
claimant be notified of the provisions of section 8113(b) and provided an opportunity to either
resume participation in vocational rehabilitation or provide reasons for not continuing
participation.5 Under section 8104 of the Act, the employee’s failure to willingly cooperate with

1

5 U.S.C. § 8104(a).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813 (August 1995).
3

Id. The Office’s regulations provide: In determining what constitutes “suitable work for a particular disabled
employee, [it] considers the employee’s current physical limitations, whether the work is available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work and other relevant
factors. 20 C.F.R. § 10.500(b).
4

5 U.S.C. § 8113(b).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(b) (November 1996).

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vocational rehabilitation may form the basis for terminating the rehabilitation program and the
reduction of monetary compensation.6 The Office’s implementing regulations state:
If an employee without good cause fails or refusing to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:
***
“(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early, but necessary stages of a vocational
rehabilitation effort (that is, meetings with the [Office] nurse, interviews,
testing, counseling, functional capacity evaluations, and work
evaluations), [the Office] cannot determine what would have been the
employee’s wage-earning capacity.
“(c) Under the circumstance identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [the Office] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity and [it] will reduce the employee’s
monetary compensation accordingly (that is, to zero). The reduction will
remain in effect until such time as the employee acts in good faith to
comply with the directions of [the Office].7
ANALYSIS
By letter dated April 25, 2007, the Office directed appellant to undergo vocational
rehabilitation pursuant to 5 U.S.C. § 8104. The purpose of rehabilitation services is to assist
injured workers in a return to work.8 Although appellant did communicate with her vocational
counselor, she exhibited a pattern of obstructive behavior towards the vocational rehabilitation
process. This was particularly evinced by her failure to complete any functional capacity
evaluation. When the vocational counselor initially approached appellant about having a
vocational capacity evaluation, the counselor noted that appellant refused and told the counselor
to utilize the results from a prior evaluation in November 2006. However, appellant repeatedly
refused to sign the authorization form to allow the counselor to obtain this report. Furthermore,
the counselor noted that appellant told her that she had been unable to complete the
November 2006 functional capacity evaluation due to severe pain.

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See Wayne E. Boyd, 49 ECAB 202 (1997) (the Board found that the Office properly reduced the claimant’s
wage-loss compensation benefits as he failed to cooperate with the early and necessary stages of developing an
appropriate training program).
7

20 C.F.R. § 10.519.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Functions of the Medical Unit: Rehabilitation Services,
Chapter 3.200.1 (November 1990).

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By letter dated June 6, 2007, the Office issued a preliminary determination that appellant
had refused to cooperate with her vocational counselor and that sanctions would be imposed if
she did not comply. A June 28, 2007 appointment was set for appellant’s vocational capacity
evaluation. However, her husband called the facility on the morning of the evaluation and stated
that appellant was too sick to attend. On August 9, 2007 another attempt was made to complete
the testing. On that date appellant did show for her appointment. However, her cooperation was
highly questionable as shown by the fact that she objected to the therapist touching her, which
appellant was unable to complete a straight leg raise or do many other tests because she indicated
she was in too much pain yet her muscle tone appeared to be good and she appeared to have
shaved her legs. The Office procedure manual provides that specific instances of noncooperation
with rehabilitation efforts include refusing or impeding early vocational rehabilitation efforts and
specifically include failing to cooperate with functional capacity evaluations.9 Accordingly, due
to appellant’s lack of cooperation with the vocational counselor in obtaining a functional
capacity evaluation, the Board finds that the Office properly reduced appellant’s compensation to
zero by decision dated October 26, 2007. The Office also reviewed appellant’s requests for
reconsideration on the merits but determined that the evidence was not sufficient to modify the
decision reducing her compensation. Although appellant submitted emergency room records for
treatment on August 9, 2007, the day of one of her functional capacity test, this report is
insufficient to establish that appellant disabled from completing the test. This report listed her
complaints and noted that she had spasmodic torticollis. However, it did not indicate that she
could not have completed the functional capacity test. Appellant’s physician indicated that, upon
review of the emergency room note, it was clear that appellant could not complete the functional
capacity evaluation on August 9, 2007 due to “severe pain due to her torticollis.” This brief note
is insufficient to explain appellant’s inability to complete this test. Dr. Bourand does not explain
why appellant could not cooperate with a test designed to measure her functional capacity taking
in account her accepted work injuries. Furthermore, his conclusion appears to be based on
appellant’s subjective complaints of pain relayed to the emergency room personnel rather than
on any objective tests. Accordingly, the Office properly found that appellant’s new evidence did
not require modification of the prior decision reducing her compensation benefits to zero.
The Board accordingly finds that appellant without good cause failed to cooperate with
vocational rehabilitation when so directed under 5 U.S.C. § 8104. Pursuant to 5 U.S.C.
§ 8113(b), the Office may reduce appellant’s compensation in accordance with what would
probably have been her wage-earning capacity in the absence of the failure, until appellant in
good faith complies with the direction of the Secretary.
In this case a suitable job has not been identified, as the failure to participate occurred in
the early but necessary stages of the rehabilitation effort. Under 20 C.F.R. § 10.519, in the
absence of contrary evidence the Office will assume that the vocational rehabilitation effort
would have resulted in a return to work with no loss of wage-earning capacity, and will reduce
compensation to zero. Based on the evidence, the Board finds that it properly reduced
appellant’s compensation to zero.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.813.11(a) November 1996).

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CONCLUSION
The Board finds that the Office properly reduced appellant’s wage-loss compensation
effective October 28, 2007 because of her failure to fully cooperate with vocational
rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 25, 2008 and December 12 and October 26, 2007 are
affirmed.
Issued: April 8, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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Appearances:
Michael Panarelli, for the appellant
Office of Solicitor, for the Director

Docket No. 12-836
Issued: September 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2012 appellant, through his representative, filed a timely appeal from a
September 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
neck, back, arm, shoulder, leg and hand injury in the performance of duty on November 1, 2010.
FACTUAL HISTORY
On November 2, 2010 appellant, then a 41-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a neck, back, shoulder, leg and arm injury on
1

5 U.S.C. § 8101 et seq.

November 1, 2010. In an attached narrative statement, he reported that Ann Ramos, his
supervisor, requested that he help load and unload trucks on November 1, 2010. Appellant used
a forklift to drive into the trailer of the truck when the truck began to move, causing the forklift
and appellant to fall off. He notified his supervisor and stopped work on November 1, 2010. In
support of his claim, appellant provided a number of witness statements describing the events of
that date.
In a November 1, 2010 diagnostic report, Dr. Kent Ibanez, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the cervical and lumbar
spine showed an unremarkable cervical spine, thoracic spine and lumbosacral spine.
In a November 6, 2010 x-ray of the right hand, Dr. Jason C. Naples, a Board-certified
diagnostic radiologist, reported that the bones of the right hand appeared intact with no
malalignment.
In a December 3, 2010 diagnostic report, Dr. Jonathan Kern, a Board-certified diagnostic
radiologist, reported that an MRI scan of the right hand demonstrated ulnar subluxation of the
extensor carpi ulnaris tendon.
In medical reports dated November 2 to December 7, 2010, Dr. Anthony Hicks, Boardcertified in internal medicine, reported that appellant complained of cervical, trapezial, thoracic,
bilateral shoulder, lumbar and left lateral thigh dysfunction pain. He opined that appellant’s
complaints were more likely than not directly and solely related to the November 1, 2010
employment incident. Dr. Hicks stated that appellant’s injuries were related to the November 1,
2010 employment incident because the onset of complaints started at work on that date, were
consistent with the work duties appellant performed and were consistent with the medical
diagnoses in the medical records submitted. He further stated that appellant did not have prior
complaints leading to the injuries in question before the work-related incident and did not engage
in other physical activities that could account for the symptoms noted which commenced on
November 1, 2010. Dr. Hicks also stated that appellant sustained injuries on February 2, 2010
which were traumatic in nature and commenced acutely on November 1, 2010 when completing
his work required physical activities.
In duty status reports (Form CA-17) dated November 9, 2010 to January 11, 2011,
Dr. Hicks reported that appellant was unable to work and should remain off duty until
January 11, 2011 when he was released to work with restrictions.
By letter dated January 6, 2011, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days.
On January 12, 2011 appellant accepted an offer of modified assignment with the
employing establishment.
By decision dated February 7, 2011, OWCP denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish a diagnosed medical condition which could be
connected to the accepted November 1, 2010 employment incident.

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By letter dated February 7, 2011, the employing establishment controverted the claim. It
noted that Dr. Hicks’ reports documented 19 separate diagnoses which were purportedly causally
related to the November 1, 2010 employment incident, that appellant failed to provide a medical
report which supported causal relationship between his alleged injuries and the November 1,
2010 employment incident and that he sought medical treatment on January 18, 2011 for a
nonoccupational fist fight he was involved in which was unrelated to his job injury. The
employing establishment included a statement from appellant’s supervisor who stated that he
informed her of the January 18, 2011 fight.
By letter dated March 9, 2011, appellant requested reconsideration of OWCP’s decision.
He stated that he was operating a forklift and unloading a trailer when the trailer pulled away
from the dock, causing him and the forklift to crash to the floor. Appellant submitted additional
medical reports in support of his claim and stated that Dr. Hicks’ reports clearly provided an
opinion on causal relationship.
In a November 1, 2010 emergency room report, Dr. Ajay Yadav, Board-certified in
emergency medicine, reported that appellant complained of moderate neck pain after he was
driving a forklift on the back of a delivery truck which pulled away, causing the forklift to fall to
the ground with appellant in the driver’s seat. He noted that the forklift landed on its wheels and
did not tip over. Upon physical examination and review of diagnostic testing, Dr. Yadav
diagnosed thoracic strain and lumbar strain.
In a November 3, 2011 medical report, Dr. Hicks reported that appellant was in a forklift
accident at work on November 1, 2010. He diagnosed cervical sprain, thoracic sprain, lumbar
sprain, trapezial sprain, joint effusion, hip contusion, sacroilitis inflamed joint tissue, shoulder
sprain, upper arm sprain and sacroiliac sprain.
In a November 6, 2010 emergency room report, Dr. Rex Medford, Board-certified in
emergency medicine, reported that appellant presented to the emergency room for an injury to
the right hand which occurred five days ago at work. He noted that moderate tenderness and
mild swelling of the right hand, noting that x-rays revealed normal. Dr. Medford diagnosed right
hand sprain.
In a February 1 and 24, 2011 medical report, Dr. Hicks reiterated that appellant’s
cervical, trapezial, thoracic, bilateral shoulder, lumbar and left lateral thigh dysfunction pain
were more likely than not directly and solely related to (caused by) the November 1, 2010 work
incident as reported and had worsened since that date. He repeated the reasons previously cited
for his conclusion and further stated that he based his assessment on the history of injury given
by appellant, actual complaints, physical examination and findings, the mechanical mechanism
of injury and the work required physical activities being performed at the time the injury was
sustained. In an undated prescription note, Dr. Hicks stated that appellant was unable to work
from January 21 to 31, 2011 due to a rib fracture. In a February 15, 2011 duty status report, he
stated that appellant could return to work with restrictions.
By decision dated March 31, 2011, OWCP affirmed the February 7, 2011 decision, as
modified, finding that the medical evidence did not establish that appellant’s injury was causally

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related to the accepted November 1, 2010 employment incident. It specifically noted that the
reports of Dr. Hicks were not well reasoned on the issue of causal relationship.
By letter dated July 18, 2011, appellant, through his representative, requested
reconsideration of OWCP’s decision. Counsel stated that Board precedent and cases cited by
OWCP supported appellant’s claim for compensation. He noted that appellant sought immediate
emergency treatment on the date of the employment incident where Dr. Yadav provided a
diagnosis of thoracic strain, lumbar strain and cervical strain. Appellant sought follow-up
treatment with Dr. Hicks the next day who opined that appellant’s diagnosed conditions were
caused by the November 1, 2010 employment incident and provided a variety of reasons for his
conclusion. Counsel stated that Dr. Hicks’ opinion and rationale was sufficient to establish
appellant’s claim and provided findings and support for his opinion as cited in the cases
referenced by OWCP. In support of his arguments, medical evidence previously of record was
resubmitted.
By decision dated September 23, 2011, OWCP affirmed the March 31, 2011 decision. It
found that, although counsel submitted an argument and provided his interpretation of the
medical evidence, the medical evidence was insufficient to establish that appellant’s injuries
were causally related to the November 1, 2010 employment incident. OWCP noted that
Dr. Hicks’ reports did not offer an explanation as to the mechanism of injury or how the incident
caused the diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.

2

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

3

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

4

Elaine Pendleton, supra note 2.

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To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that the November 1, 2010 employment incident occurred as alleged.
The issue is whether appellant established that the incident caused his multiple injuries. The
Board finds that he did not submit sufficient medical evidence to support that his neck, back,
shoulder, leg, arm and hand injuries were causally related to the November 1, 2010 employment
incident.7
In a November 1, 2010 emergency room report, Dr. Yadav reported that appellant
complained of moderate neck pain after he was driving a forklift on the back of a delivery truck
which pulled away, causing the forklift to fall to the ground with appellant in the driver’s seat.
He noted that the forklift landed on its wheels and did not tip over. Upon physical examination
and review of diagnostic testing, Dr. Yadav diagnosed thoracic strain and lumbar strain. While
he provided a diagnosis of thoracic and lumbar strain, he did not explain whether or how the
accepted November 1, 2010 incident caused or contributed to any back condition. Dr. Yadav
merely recounted the incident as alleged by appellant but failed to provide an opinion on the
cause of appellant’s injury. The Board has held that 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.8 Thus, Dr. Yadav’s report is insufficient to meet appellant’s burden of
proof.
In a November 6, 2010 emergency room report, Dr. Medford reported that appellant
presented to the emergency room for a right hand injury which occurred five days ago at work.
He diagnosed right hand sprain. Dr. Medford’s report is insufficient to meet appellant’s burden
of proof as he did not determine that his condition was work related or offer a rationalized

5

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

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

8

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

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opinion on causal relationship between appellant’s right hand sprain and the November 1, 2010
employment incident.9
In medical reports dated November 2, 2010 to February 24, 2011, Dr. Hicks reported that
appellant was in a forklift accident at work on November 1, 2010. He diagnosed cervical sprain,
thoracic sprain, lumbar sprain, trapezial sprain, joint effusion, hip contusion, sacroilitis inflamed
joint tissue, shoulder sprain, upper arm sprain, sacroiliac sprain and left lateral thigh dysfunction
pain. Dr. Hicks opined that appellant’s cervical, trapezial, thoracic, bilateral shoulder, lumbar
and left lateral thigh dysfunction pain was more likely than not directly and solely related to
(caused by) the November 1, 2010 work incident as reported and had worsened since that date.
He stated that appellant’s injuries were related to the November 1, 2010 employment incident
because the onset of complaints started at work on that date, were consistent with the work duties
appellant performed and were consistent with the medical diagnoses in the medical records
submitted. Further, appellant did not have prior complaints leading to the injuries in question
before the work-related incident and did not engage in other physical activities that could
account for the symptoms that commenced on November 1, 2010. Dr. Hicks also stated that his
opinion was based on his assessment of the history of injury given by appellant, the actual
complaints, physical examination and findings, the mechanical mechanism of injury and the
work required physical activities being performed at the time the injury was sustained. He then
noted that appellant sustained injuries on February 2, 2010 which were traumatic in nature and
commenced acutely on November 1, 2010 when completing his work required physical
activities.
The Board finds that the opinion of Dr. Hicks is not well rationalized. Dr. Hicks provides
a multitude of diagnoses but fails to identify how the November 1, 2010 employment incident
contributed to appellant’s injuries. While he noted that appellant was in a forklift accident on
November 1, 2010, it is unclear how this accident would cause appellant’s injuries to occur.
Dr. Hicks stated that his opinion was based on a number of factors including that appellant’s
complaints started on that work date, were consistent with his work duties, were consistent with
the medical diagnoses in the medical records submitted, there were no prior complaints leading
to the injuries in question before the work-related incident and that appellant did not engage in
other physical activities that could account for the symptoms that commenced on
November 1, 2010. Despite stating why he believed that appellant’s injuries were related to the
November 1, 2010 employment incident, he did not state how the mechanism of injury would
occur from a forklift accident. Dr. Hicks failed to explain any details regarding the forklift
accident which he attributes to appellant’s cervical sprain, thoracic sprain, lumbar sprain,
trapezial sprain, joint effusion, hip contusion, sacroilitis inflamed joint tissue, shoulder sprain,
upper arm sprain, sacroiliac sprain and left lateral thigh dysfunction pain. Further, he stated that
his opinion on causal relationship was based on the medical diagnoses in the medical records
submitted but failed to state what diagnoses or medical records he was referring to.
Moreover, Dr. Hicks indicated that appellant sustained a traumatic injury on February 2,
2010 which commenced acutely on November 1, 2010. He failed to provide any details
9

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

6

regarding appellant’s medical history or note what the incident and injury was from the
February 2, 2010 incident. It is unclear if the diagnoses Dr. Hicks provided are a result of
preexisting conditions from the February 2, 2010 traumatic injury or if it was caused or
aggravated by the November 1, 2010 employment incident. Medical reports without adequate
rationale on causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.10 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.11
Without medical reasoning explaining how November 1, 2010 employment incident caused or
contributed to his injuries, Dr. Hicks’ reports are insufficient to meet appellant’s burden of
proof.12
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Ibanez’s November 1, 2010 diagnostic report noted that appellant’s MRI scan showed
unremarkable findings of the cervical spine, thoracic spine, lumbosacral spine. Dr. Naples
November 1, 2010 x-ray of the right hand revealed that the bones were intact with no
malalignment. Dr. Kern’s December 3, 2010 diagnostic report identified ulnar subluxation of the
extensor carpi ulnaris tendon of the right hand. Dr. Ibanez and Dr. Naples reports provide no
diagnosis and unremarkable findings. While Dr. Kern provides a diagnosis for appellant’s right
hand, he fails to state any opinion on causal relationship.13 Thus, the reports are of limited
probative value.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the November 1, 2010 employment incident and appellant’s injuries. Thus,
appellant has failed to meet his burden of proof.
The Board notes that appellant submitted medical evidence to the Board with his appeal
request. The Board’s review of a case is limited to evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by
the Board for the first time on appeal.14 Appellant may submit additional evidence, together with
a written request for reconsideration, to OWCP within one year of the Board’s merit decision,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

C.B., Docket No. 08-1583 (issued December 9, 2008).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

14

20 C.F.R. § 501.2(c)(1)

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his back,
arm, neck, hand, shoulder and leg injuries are causally related to the November 1, 2010
employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 17-1606
Issued: February 14, 2018

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 July 18, 2017 appellant filed a timely appeal from a March 27, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 8, 2016 as he no longer had any residuals or disability causally
related to his accepted employment-related injuries.
FACTUAL HISTORY
On December 12, 2015 appellant, then a 54-year-old bulk mail technician, filed a
traumatic injury claim (Form CA-1) alleging that he sprained his left lower back earlier that day
1

5 U.S.C. § 8101 et seq.

while removing a flat tub from a U-cart. He did not stop work at the time. In January 2016,
OWCP accepted his claim for lumbar sprain.
Appellant underwent physical therapy and submitted physical therapy reports dated
March 15 through April 8, 2016.
In a report dated April 8, 2016, Dr. Matthew C. Lee, an orthopedic surgeon, found that
appellant’s lumbar sprain had resolved. He also advised that lifting the mail tub on
December 12, 2015 irritated appellant’s preexisting spine instability (L4-5 spondylolisthesis).
Dr. Lee indicated that greater than 50 percent of appellant’s problem was related to his
preexisting condition. He also noted that he never took appellant off of work, but had imposed a
25-pound lifting restriction. Dr. Lee indicated that appellant should be working.
In an April 18, 2016 report, Dr. Christopher D. Lowery, a chiropractor, diagnosed L3-4
disc bulge with bilateral foraminal narrowing, L4-5 spondylolisthesis with bulge, and L5-S1
bulge. Dr. Lowery noted that appellant’s medical history included previous injuries from a
motor vehicle accident.
On April 20, 2016 Dr. Lowery found that appellant’s bilateral low back pain had not
changed. Appellant tolerated adjustment well with no post-treatment complications and reported
that there had been no change in his medical history following the last visit to the office.
Dr. Lowery found that palpation during treatment revealed areas of altered tissue resistance,
muscle spasms, and areas of increased sensitivity. He listed appellant’s prognosis as good.
On April 20, 2016 OWCP expanded appellant’s claim to include aggravation of lumbar
spondylolisthesis (L4-5) as an accepted condition.
In an April 25, 2016 work capacity evaluation, (OWCP-5c) Dr. Lee advised that
appellant was capable of performing his usual job full time without restrictions. He determined
that appellant had reached maximum medical improvement (MMI) as of April 24, 2016. OWCP
also received an unsigned note that indicated the temporary aggravation of appellant’s
spondylolisthesis had resolved and he had reached MMI as of April 24, 2016.
On April 27, 2016 appellant resumed his full-time, regular duties.
By letter dated May 5, 2016, OWCP issued a notice of proposed termination of medical
benefits and future wage-loss compensation. It proposed to terminate appellant’s FECA benefits
based on Dr. Lee’s April 8 and 25, 2016 reports. OWCP explained that, according to appellant’s
treating physician, both his lumbar sprain and temporary aggravation of L4-5 spondylolisthesis
had resolved. It afforded appellant 30 days for the submission of additional evidence or
argument, in writing, if he disagreed with the proposal.
Appellant submitted progress reports dated April 22 and 27, May 2, 4, 9, 13, and 17,
2016 from Dr. Lowery who reiterated that his prognosis was good.
OWCP also received an April 25, 2016 narrative report from Dr. Lee who indicated that
appellant was seen for lumbar pain with left hip pain and described the pain as mild, worsening
as the day progressed. Dr. Lee also indicated that the onset of appellant’s symptoms occurred
2

after a December 12, 2015 employment injury at work while lifting a tub from a cart. He
diagnosed lumbago, lumbosacral spondylosis without myelopathy, low back pain, and other
spondylosis with radiculopathy, lumbosacral region. Dr. Lee opined that appellant’s “severe
pain in his exacerbation ha[d] resolved.”
In a May 20, 2016 narrative statement, appellant indicated that he disagreed with the
proposal to terminate his FECA benefits and contended that his medical condition required
continued chiropractic care and physical therapy.
By decision dated June 9, 2016, OWCP terminated appellant’s medical benefits and
entitlement to future wage-loss compensation effective June 8, 2016 based on Dr. Lee’s opinion.
In progress reports dated May 25, June 1, 8, and 15, 2016, Dr. Lowery reiterated that
appellant’s prognosis remained good.
In reports dated May 9, 13, and 25, 2016, Dr. Lowery provided restrictions of no heavy
lifting.
In an undated report, Dr. Lowery noted that lumbar x-rays were taken following
appellant’s February 17, 2016 office visit and findings indicated L4-5 spondylolisthesis due to
bilateral L4 pars defect, multilevel degenerative changes including disc space narrowing, and
sclerotic changes. He noted that this mirrored the findings of the January 22, 2016 magnetic
resonance imaging (MRI) study with an additional finding of an L2-3 left facet synovial cyst
with moderate narrowing of the left lateral recess, L3-4 disc bulge with bilateral foraminal
narrowing, L4-5 disc bulge with ligamentum hypertrophy, and L5-S1 disc bulge with moderate
left and right foraminal narrowing. Dr. Lowery opined that these findings seemed to correlate
with the trauma appellant sustained at work on December 12, 2015 and qualified him as a
chiropractic patient as chiropractic manipulations were indicated.
Appellant submitted a February 17, 2016 report from Ian MacDonald, a nurse practitioner
under Dr. Lee’s supervision, who reiterated that appellant’s symptoms from his work injury were
an exacerbation of a previously existing condition. Mr. MacDonald also reiterated that appellant
would like to continue with physical therapy and was referred for chiropractic care.
On November 2, 2016 Kimberly R. Hagen, a nurse practitioner under Dr. Lee’s
supervision, reiterated that appellant had a preexisting lumbar condition and recommended
physical therapy.
Appellant also submitted a physical therapy report dated December 5, 2016.
On December 21, 2016 appellant requested reconsideration and argued that he continued
to suffer residuals of his employment-related conditions.
In a November 2, 2016 duty status report (Form CA-17), Dr. Lee reiterated his opinion
that appellant was capable of working full time without restrictions.

3

By decision dated March 27, 2017, OWCP denied modification of its prior decision
because the medical evidence established that appellant’s accepted conditions had resolved and
he had no disabling residuals of his accepted employment injuries.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3 The
right to medical benefits for an accepted condition, on the other hand, is not limited to the period
of entitlement to disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that an employee no longer has residuals of an employment-related
condition which would require further medical treatment.5
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for lumbar sprain and aggravation of
L4-5 spondylolisthesis. It based its termination of FECA benefits on reports from Dr. Lee,
appellant’s attending physician.
In his April 8, 2016 report, Dr. Lee found that appellant’s lumbar sprain had resolved.
He further opined that lifting the mail tub on December 12, 2015 had irritated appellant’s
preexisting spine instability. Dr. Lee attributed greater than 50 percent of appellant’s condition
to his preexisting condition of lumbar L4-5 spondylolisthesis. On April 25, 2016 he noted that
appellant was seen for lumbar pain with left hip pain and described the pain as mild, worsening
as the day progressed. Dr. Lee indicated that the onset of appellant’s symptoms occurred after a
December 12, 2015 injury at work while lifting a tub from a cart. He diagnosed lumbago,
lumbosacral spondylosis without myelopathy, low back pain, and other spondylosis with
radiculopathy, lumbosacral region. Dr. Lee opined that appellant’s “severe pain in his
exacerbation ha[d] resolved.” In an April 25, 2016 work capacity evaluation, he opined that
appellant was capable of performing his usual job full time without restrictions. Dr. Lee
determined that appellant had reached MMI as of April 24, 2016. Thus, the Board finds that
OWCP properly relied on Dr. Lee’s opinion to terminate appellant’s FECA benefits effective
June 8, 2016. In a November 2, 2016 duty status report (Form CA-17), Dr. Lee continued to
advise that appellant was capable of working full time without restrictions.

2
See Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001). See also C.B., Docket No.
10-1623 (issued April 11, 2011).
3

See Gewin C. Hawkins, 52 ECAB 242 (2001).

4

See T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

See Furman G. Peake, 41 ECAB 361, 364 (1990); see also L.G., Docket No. 09-1692 (issued August 11, 2010).

4

The Board finds that the evidence of record demonstrates that appellant no longer suffers
from residuals of his accepted December 12, 2015 employment injury. The weight of the
medical evidence as represented by Dr. Lee’s opinion establishes that appellant’s employmentrelated lumbar conditions have resolved.
The reports from appellant’s chiropractor, Dr. Lowery, are of no probative medical value
because he did not diagnose a spinal subluxation as demonstrated by x-ray.6 Appellant further
submitted evidence from nurse practitioners and physical therapists. However, these documents
do not constitute competent medical evidence because neither a nurse practitioner nor a physical
therapist is a “physician” as defined under FECA.7 Certain health care providers such as
physician assistants, nurse practitioners, physical therapists, and social workers are not
considered “physician[s]” as defined under FECA.8 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.9 A report
from a physician assistant or certified nurse practitioner will be considered medical evidence if
countersigned by a qualified physician.10 A medical report should bear the physician’s signature
or signature stamp.11 OWCP may require an original signature on the report.12 The Board finds
that neither one of the nurse practitioner’s reports was cosigned by Dr. Lee, nor did they bear the
signature stamp of another qualified physician. Consequently, the above-noted evidence is
insufficient to establish that appellant continues to suffer residuals of his accepted lumbar
conditions.13
As such, OWCP properly terminated entitlement to medical and future wage-loss
compensation benefits effective June 8, 2016.
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.
6

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulations by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
7
5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (nurse practitioners); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).
8

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

9

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

11

20 C.F.R. § 10.331(a).

12

Id.

13

See supra notes 2-5.

5

CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 8, 2016 as he no longer had any residuals or disability causally
related to his accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, LA COSTA STATION,
Carlsbad, CA, Employer
__________________________________________

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

Docket No. 08-2228
Issued: May 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated April 14, 2008 denying her claim for compensation, and
a May 12, 2008 decision denying her request for reconsideration without a merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an occupational injury in the performance of duty; and (2) whether the Office properly
denied appellant’s reconsideration request without a merit review.
FACTUAL HISTORY
On February 13, 2008 appellant, then a 45-year-old box clerk, filed an occupational
disease claim alleging that she reinjured her left and right forearm, right shoulder, lower back

and neck due to repetitive lifting over her head.
March 5, 2004. Appellant did not stop work.

She first realized her condition on

Appellant submitted a February 14, 2008 work restriction form of Dr. Laura Todoroff, an
osteopath and Board-certified physiatrist, who recommended limited duty with no excessive or
repeated bending, pulling or pushing. Dr. Todoroff also restricted lifting to 10 pounds and
limited overhead lifting. She diagnosed musculoligamentous injury to the cervical, thoracic and
lumbar spine.
On February 26, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional evidence. In
particular, it requested factual evidence identifying the job activities that contributed to
appellant’s condition as well as a medical report that provided a diagnosis and explanation of
how the activities contributed to the condition.
Appellant submitted a February 14, 2008 report of Dr. Todoroff in which she noted
appellant’s complaint of pain in the neck, shoulders and mid-back. Dr. Todoroff also noted that
appellant’s job duties required throwing mail, unloading trucks, pulling down and passing out
mail and breaking down mail. She indicated that appellant’s lumbar spine had full range of
motion and her cervical spine had 50 percent range of motion. Dr. Todoroff advised no
repetitive pulling, pushing or bending as well as restricted overhead reaching and lifting over 10
pounds.
In a decision dated April 14, 2008, the Office denied appellant’s claim for compensation
finding that the evidence was insufficient to establish that the events occurred as alleged. It
indicated that there was no factual evidence on file demonstrating that appellant performed
repetitive overhead lifting activities. The Office further found there was no medical evidence
that provided a diagnosis which could be connected to the claimed events.
On April 26, 2008 appellant requested reconsideration. In an April 26, 2008 letter, she
stated that her condition was a reinjury, which she had first filed on September 24, 2003.
Appellant noted that the reinjury had occurred over a period of time and that on February 13,
2008 she experienced extreme pain in her shoulder and neck due to repetitive pushing, pulling,
bending and lifting over her head or shoulders. She further noted that she has worked in her
current position for 21 years and continued to work in that position under light duty. Appellant
also submitted photographs of the type of equipment that required her to push, pull, bend and lift
over her shoulders or head. She indicated that she was attaching copies of doctors’ reports
containing a diagnosis of her condition. However, no medical records accompanied appellant’s
letter.
In a May 12, 2008 decision, the Office denied appellant request for reconsideration
without a merit review.
LEGAL PRECEDENT -- ISSUE 1
In a claim for an occupational disease, the time limitations of the Act begin to run when
the employee becomes aware, or reasonably should have been aware, of a possible relationship,

2

by cause or aggravation, between his disease and his employment. If his exposure to the
implicated employment factors extends beyond the date of such awareness, the time limitations
begin to run on the last date of such exposure.1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.3
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions, which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, she must submit medical evidence showing that a medical condition was
caused by such a factor.4 It is the claimant’s responsibility to prove that work was performed
under these specific conditions at the time, in the manner and to the extent alleged.5
ANALYSIS -- ISSUE 1
The Board finds that factors of employment have been established. In the Office’s
April 14, 2008 decision, it found that the evidence was insufficient to establish that the events
occurred as alleged as there was no factual evidence on file demonstrating that appellant
performed repetitive overhead lifting activities. However, the record contains Form CA-2, in
1

Franklin D. McGuire, 27 ECAB 317 (1976).

2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

Effie Morris, 44 ECAB 470 (1993).

5

FECA Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993) (in
occupational disease cases, the claimant must submit evidence to identify fully the particular work conditions
alleged to have caused the disease); see also L.B., 59 ECAB ___ (Docket No. 07-1748, issued December 18, 2007)
(stating that the claimant has the burden of proof to identify employment factors believed to have caused or
aggravated a claimed employment-related condition).

3

which appellant clearly indicated that her alleged injury was due to repetitive overhead lifting.
There is no evidence from the employing establishment indicating that overhead lifting was not a
job duty. Furthermore, Dr. Todoroff noted that appellant’s job duties included throwing mail,
unloading trucks, pulling down and passing out mail and breaking down mail. Therefore, the
Board finds that appellant has identified an employment factor, overhead lifting, as the cause of
her claimed condition. However, the medical evidence does not support that appellant’s
condition is causally related to the overhead lifting.
In a February 14, 2008 report, Dr. Todoroff noted appellant’s complaint of neck, shoulder
and mid-back pain. She also noted that appellant’s job required her to throw mail, unload trucks
and pull and break down mail. However, this report did not address whether appellant’s
employment duties caused or aggravated her condition. 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.6 In a work restriction form of the same date, Dr. Todoroff diagnosed
musculoligamentous injury to the cervical, thoracic and lumbar spine. She recommended that
appellant work limited duty without excessive or repeated bending, pulling or pushing.
Dr. Todoroff also restricted lifting to 10 pounds and limited overhead lifting. Although she
provided a diagnosis, she did not address how appellant’s diagnosed condition was caused or
aggravated by repetitive overhead lifting. As noted, a medical report without an opinion on
causal relationship is of limited probative value.
Appellant did not submit any other medical evidence, prior to the issuance of the Office’s
April 14, 2008 decision, supporting that repetitive overhead lifting caused or aggravated a
diagnosed medical condition. Therefore, the Board finds that appellant did not meet her burden
of proof in establishing that she sustained an occupational injury in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS -- ISSUE 2
Upon requesting reconsideration, appellant submitted a letter dated April 26, 2008 in
which she noted that she had first filed a claim for her alleged injury on September 24, 2003.
6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

7

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

8

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

4

She further noted that a reinjury of her condition had occurred over a period of time and that on
February 13, 2008 she experienced extreme pain in her shoulder and neck due to repetitive
pushing, pulling, bending and lifting over her head or shoulders at work. Appellant also included
photographs that depicted her utilizing the types of equipment that required her to push, pull,
bend and lift over her shoulders or head.
Appellant does not demonstrate that the Office erroneously applied or interpreted a
specific point of law as appellant did not refer to any points of law in her letter. She also does
not advance a relevant legal argument not previously considered by the Office as her April 26,
2008 letter reiterated her claim that she was injured due to repetitive overhead lifting, pushing,
pulling and bending at work. Appellant also did not submit evidence that constitutes relevant
and pertinent new evidence not previously considered by the Office. Her April 26, 2008 letter
indicated that she had reinjured her neck and shoulders performing repetitive movements at
work. However, this information is already of record as appellant provided a similar statement
on Form CA-2. The Board has held that the submission of evidence which repeats or duplicates
evidence already in the case record does not constitute a basis for reopening a case.9 The
photographs also do not constitute relevant new evidence as the type of equipment used in
appellant’s workplace is not in dispute. Also, appellant’s assertion that her condition was a
reinjury of a separate claim is not germane to the present claim that she filed on
February 13, 2008.10
Because appellant’s request for reconsideration does not meet at least one of the criteria
required to reopen a case, the Board finds that the Office properly denied appellant’s request for
reconsideration without a merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an occupational disease in the performance of duty. The Board further finds that the
Office properly denied appellant’s request for reconsideration without a merit review.11

9

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007). D.I., 59 ECAB ___ (Docket No. 07-1534,
issued November 6, 2007).
10

This decision of the Board does not preclude appellant from pursuing matters in any other claims that she may
have filed with the Office.
11

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 12 and April 14, 2008 are affirmed.
Issued: May 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1925
Issued: March 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 19, 2012 appellant, through his attorney, filed a timely appeal of the
June 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a left knee injury causally related to factors of
his federal employment.
On appeal, counsel contends that a July 13, 2011 magnetic resonance imaging (MRI)
scan and January 30, 2012 medical report of Dr. Alan E. Schultz, an attending Board-certified
orthopedic surgeon, are sufficient to establish appellant’s claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted under OWCP File No. xxxxxx231 that on January 13, 1999 appellant,
then a 28-year-old letter carrier, sustained a ruptured left patella tendon while in the performance
of duty. It authorized left knee surgery.2
On March 30, 2011 appellant filed a claim alleging that he sustained a recurrence of
disability on March 14, 2011 causally related to his accepted January 13, 1999 employment
injury while performing limited-duty work. He reinjured his left knee as a result of standing for
hours on a floor with no mats from March 12 through 26, 2011.
Medical evidence submitted included a January 19, 2011 disability certificate from
Dr. Francesco W. Lima, a Board-certified family practitioner, authorized appellant to return to
light-duty work on January 20, 2011. In a February 2, 2011 prescription, he listed appellant’s
restrictions, which included no walking or climbing stairs for four weeks.
Dr. Scott L. Coleman, a Board-certified internist, released appellant to return to work on
February 24, 2011 with no walking or climbing stairs from March 3 to 31, 2011.
In a March 29, 2011 disability slip, a physician’s assistant whose signature is illegible
advised that appellant had a left leg injury and released him to return to work on March 30, 2011.
Dr. Schultz, in a duty status report and prescription note dated March 31, 2011, advised
that appellant had internal derangement and strain of the left knee. Appellant could return to
work on April 30, 2011.
By letter dated March 31, 2011, the employing establishment controverted the claim,
contending that the absence of floor mats did not cause appellant’s claimed injury. Appellant
never complained about a lack of mats on the workroom floor or requested a mat. The
employing establishment accommodated his previous physical restrictions with light-duty work.
On April 14, 2011 OWCP determined that appellant’s recurrence claim should be treated
as a new occupational disease claim as he alleged a new incident after he started work at the
employing establishment. The claim was assigned File No. xxxxxx206. By letter dated
April 20, 2011, OWCP advised appellant that the evidence submitted was insufficient to
establish his claim. It requested that he submit factual and medical evidence, including a
rationalized medical opinion from an attending physician describing his symptoms and
employment duties and activities and providing dates of examination and treatment, examination
and test results, a diagnosis together with an explanation as to how his work activities caused,
contributed to or aggravated his medical condition.
Reviewed in the record was a March 31, 2011 treatment note, Dr. Schultz obtained a
history that appellant believed that he may have aggravated his prior left knee injury. Appellant
had symptoms related to the patellofemoral region of his previously surgically repaired left knee.
2

In a January 31, 2003 decision, OWCP granted appellant a schedule award for 19 percent permanent impairment
to the left lower extremity.

2

He related to Dr. Schultz that extended period on a cold, hard and damp floor may have triggered
or exacerbated the old event. Dr. Schultz reported that an x-ray of the left knee revealed
symmetrical joint space. There was no evidence of an acute injury. Dr. Schultz advised that
appellant had internal derangement and an inflammatory joint. In an April 21, 2011 prescription
note, he advised that appellant was unable to work through June 1, 2011. In a treatment note of
that same date, Dr. Schultz stated that appellant required at least six weeks of physical therapy
and could more than likely return to work in early July 2011. He followed up with a medical
form and duty status report, in which he reiterated his prior diagnoses of internal derangement
and strain of the left knee and advised that appellant was unable to work until at least
July 30, 2011. On June 30, 2011 Dr. Schultz advised that appellant was unable to work through
August 15, 2011.
Appellant, in a May 18 2011 statement, attributed his current left leg injury to his
accepted January 19, 1999 employment-related left knee injury and standing three to four hours a
day on a cement floor without any cushioned mats while working at the employing
establishment. He stated that on March 12, 2011 his regular-duty station was evacuated due to
flooding throughout Wayne, New Jersey. Carriers, including appellant, were relocated to a new
facility of the employing establishment. He worked 8 to 10 hours a day, 5 days a week at this
location. Appellant also worked part time as a cashier at Home Depot where he was given a
cushioned floor mat. He only worked four hours a day on a couple of days from March 12
through 26, 2011. Appellant last worked at the store on March 24, 2011.
In a July 13, 2011 decision, OWCP denied appellant’s claim, finding that the evidence
was insufficient to establish that the described injury or event occurred as alleged. It also found
that the medical evidence did not establish that he sustained a diagnosed condition caused by the
work injury or event.
By letter dated August 5, 2011, appellant, through his attorney, requested a telephone
hearing with an OWCP hearing representative. During the November 15, 2011 telephone
hearing he testified that his new duties at the employing establishment included casing mail three
to four hours a day. Appellant’s regular letter carrier duties at the previous location only
required him to case mail two to two and one-half hours a day. He stood on a mat at the previous
location. Appellant reported his knee condition to his supervisor. He worked part time, less than
10 hours a week, at Home Depot for more than two years without any left knee problems.
Appellant was able to move and rest his knee while at his part-time job and was able to continue
his part-time job because there was less strain on his knee than working at the employing
establishment. He had not worked since August 23, 2011 when the postmaster sent him home
because he could not perform his required work duties.
In a February 1, 2012 decision, an OWCP hearing representative affirmed as modified
the August 5, 2011 decision. The hearing representative found that the evidence was sufficient
to establish that from March 12 to 26, 2011 appellant stood on a cement floor without a mat
while casing mail three to four hours a day. She, however, found that the medical evidence in
File Nos. xxxxxx206 and xxxxxx231 did not contain a rationalized medical opinion explaining
how his left knee condition was caused or aggravated by the accepted employment factors.

3

By letter dated March 15, 2012, appellant’s attorney requested reconsideration and
submitted additional medical evidence. In a January 30, 2012 report, Dr. Schultz provided a
history that during an examination on March 31, 2011 appellant stated that he had aggravated his
previously surgically corrected left knee condition due to persistent standing on cold hard
flooring. On or about March 12, 2011 he experienced a severe exacerbation of left knee pain
that appeared to be triggered by standing on the floor. Dr. Schultz stated that x-rays performed
at that time showed no evidence of an acute injury. His impression was an inflammatory joint.
Dr. Schultz referred to a subsequent MRI scan which did not show a new physical tear, but rather
progressive deterioration in the patellofemoral joint and a small knee effusion. The ligaments
and tendons were intact. Patellar tendon showed thickening consistent with a prior injury. There
was a decrease in the medial joint space and patellofemoral region. Dr. Schultz advised that
recent MRI scan findings showed a progression and an exacerbation of appellant’s 1999 knee
injury. The findings were consistent with post-traumatic degenerative changes of the
patellofemoral joint and medial compartment, which accelerated the normal wear and tear
process initiated by the injury. Dr. Schultz stated that the recent flare-up of appellant’s left knee
symptoms was not related to his work at Home Depot, which he performed on a limited basis,
provided him with the ability to frequently change his position and required minimal standing on
a regular basis. He attributed the exacerbation to his work environment at the employing
establishment as the primary modality.
In a June 12, 2012 decision, OWCP denied modification of the February 1, 2012
decision. It found that Dr. Schultz’ January 30, 2012 report was not sufficiently rationalized to
establish that appellant sustained a medical condition causally related to the established work
duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

4

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor his or her belief that, the
condition was caused by his or her employment is sufficient to establish a causal relationship.7
ANALYSIS
OWCP accepted as factual that from March 12 to 26, 2011 appellant stood on a cement
floor without a mat while casing mail three to four hours a day as a limited-duty letter carrier.
While the work duties are established, the Board finds that he failed to establish a causal
relationship between any left knee conditions and the established work duties.
Dr. Schultz’ January 30, 2012 report found that appellant’s left knee symptoms were
caused by his work at the employing establishment and not by his part-time job at Home Depot.
He provided a history that appellant worked on a cold hard damp floor at the employing
establishment, which he contended aggravated his prior employment-related left knee injury.
Dr. Schultz noted that his prior x-ray and MRI scan findings related to the left knee and
diagnosis of inflammatory joint. He advised that recent MRI scan findings showed a progression
and an exacerbation of the accepted 1999 employment-related left knee injury and were
consistent with post-traumatic degenerative changes of the patellofemoral joint and medial
compartment, which accelerated the normal wear and tear process initiated by the 1999 injury.
While Dr. Schultz opined that appellant’s current left knee conditions were the result of an
established work duty, he failed to explain how the employment factor caused or contributed to
the conditions. The Board has held that a medical opinion not supported by medical rationale is
of little probative value.8 Without medical reasoning explaining how the established
employment factor caused or contributed to appellant’s left knee conditions, Dr. Schultz’
January 30, 2012 report is insufficient to meet appellant’s burden of proof.9 None of the other
reports, treatment notes and prescriptions from Dr. Schultz offered an opinion on how the
established employment duties caused or aggravated appellant’s diagnosed left knee conditions
and resultant intermittent periods of disability. Medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value.10 The
Board finds, therefore, that this evidence is insufficient to establish appellant’s claim.
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5 at 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

Caroline Thomas, 51 ECAB 451 (2000).

9

C.B., Docket No. 08-1583 (issued December 9, 2008).

10

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).

5

Dr. Lima’s January 19, 2011 disability certificate and February 2, 2011 prescription
advised that appellant could return to light work with restrictions, but failed to provide
confirmation of any diagnosis or an opinion as to whether his disability and restrictions were
caused or contributed to by the established work duties. Likewise, Dr. Coleman, in a
February 24, 2011 prescription, released appellant to return to work with restrictions from
March 3 to 31, 2011, but he did not provide a diagnosis or an opinion on the causal relationship
between appellant’s disability and the established employment factors. As the reports of Drs.
Lima and Coleman do not contain any firm diagnosis, rationale or explanation of the mechanism
of injury arising from, appellant’s accepted employment duties, he failed to meet his burden.11
The March 29, 2011 disability slip from a physician’s assistant is of no probative medical
value since a physician’s assistant is not a physician as defined under FECA.12
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left knee condition causally related to the accepted
employment factors. Appellant did not meet his burden of proof.
On appeal, appellant’s attorney contended that a July 13, 2011 MRI scan and Dr. Schultz’
January 30, 2012 report were sufficient to establish appellant’s claim. The Board notes,
however, that the July 13, 2011 MRI scan is not contained in the case record under OWCP File
Nos. xxxxxx206 and xxxxxx231. Moreover, as stated, Dr. Schultz’ January 30, 2012 report does
not provide a rationalized medical opinion explaining how appellant’s left knee conditions were
caused by the established work duties.
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 establish that he sustained a left knee injury
causally related to factors of his federal employment.

11

Gary M. DeLeo, 56 ECAB 656 (2005); Victor J. Woodhams, supra note 5.

12

See 5 U.S.C. § 8101(2); P.B., Docket No. 12-960 (issued September 25, 2012); George H. Clark, 56 ECAB
551 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7