United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RAYMOND G. MURPHY MEDICAL CENTER,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 18-1096
Issued: December 14, 2018

Case Submitted on the Record

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

JURISDICTION
On May 7, 2018 appellant filed a timely appeal from an April 16, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish left long trigger
finger and bilateral wrist tendinitis causally related to the accepted factors of her federal
employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2018 appellant, then a 55-year-old certified respiratory therapist, filed an
occupational disease claim (Form CA-2) alleging that sometime before August 1, 2017, she first
sustained pain, swelling, and stiffness of the long finger of her left hand, and numbness and
weakness of her right hand due to repetitive gripping and fine manipulation at work. She stopped
work on February 8, 2018. On or about February 23, 2018 appellant accepted a full-time,
temporary light-duty assignment.
In support of her claim, appellant submitted reports dated February 8, 2018 from Dr. Harry
Messec, an attending osteopathic physician Board-certified in family practice. Dr. Messec related
her description of pain and paresthesias in the left long finger, left thumb, and right hand, worsened
by typing, manipulating oxygen tanks, and operating flow regulators at work. On examination he
diagnosed right carpal tunnel syndrome and arthritis of the third digit of the left hand. Dr. Messec
provided work restrictions. In a duty status report (Form CA-17) dated February 8, 2018, he
responded “yes” to the question which asked if the diagnosed conditions were due to injury.
In a report dated February 23, 2018, Dr. Sonal Bhatt, an attending Board-certified internist,
diagnosed a left middle trigger finger, and an enesopathy of the right wrist. She related that
appellant could return to full-duty work.
By development letter dated February 26, 2018, OWCP notified appellant of the type of
additional factual and medical evidence needed to establish her occupational disease claim,
including a detailed factual statement describing the mechanism of injury, and a narrative opinion
from her attending physician explaining how and why the identified employment factors would
cause the claimed left long finger and right wrist conditions. It afforded her 30 days to submit the
necessary evidence.
In response appellant submitted a March 13, 2018 statement attributing her left hand and
right wrist conditions to repetitive data entry, keyboarding, and mandatory quarterly
cardiopulmonary resuscitation training at work. She also provided additional medical evidence.2
In reports dated February 23, 2018, Dr. Bhatt related that appellant experienced increased
pain in her fingers while “doing computer work,” with paresthesias in the right hand. Appellant’s
left middle finger often became stuck in a bent position. Dr. Bhatt diagnosed bilateral wrist
tendinitis and a left trigger finger. She prescribed medication and physical therapy. Dr. Bhatt
returned appellant to full duty. In progress notes dated from February 27 to March 13, 2018, she
related that repetitive hand and wrist movement aggravated appellant’s symptoms.
Appellant also submitted a report dated March 23, 2018 from Steven Cardenas, a physician
assistant.
By decision dated April 16, 2018, OWCP accepted that appellant’s assigned federal work
duties required repetitive hand motions. However, it denied her occupational disease claim as the
medical evidence of record was insufficient to establish causal relationship between the accepted
2

Appellant participated in physical therapy treatments from February 23 to March 9, 2018.

2

employment factors and the claimed left long finger and bilateral wrist conditions commencing on
August 1, 2017.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.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
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
To establish 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 establishing such causal relationship.7 Causal relationship is a medical issue,
and the medical evidence required to establish causal relationship is rationalized medical
evidence.8 The opinion of the physician must be based on a complete factual and medical
background 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 employee.9 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.10

3

Supra note 1.

4

B.G., Docket No. 18-0784 (issued November 9, 2018); see also Alvin V. Gadd, 57 ECAB 172 (2005).

5

C.H., Docket No. 18-016 (issued June 15, 2018); see also Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB
117 (2005).
6

J.I., Docket No. 18-0286 (issued September 17, 2018); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
7

J.I., id., I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

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

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left long trigger
finger and bilateral wrist tendinitis causally related to accepted factors of her federal employment.
Dr. Messec diagnosed right carpal tunnel syndrome and arthritis of the third digit of the
left hand on February 8, 2018. He responded “yes” in a duty status report (Form CA-17) dated
February 8, 2018, indicating that the diagnosed conditions were work related. The Board has held
that when a physician’s opinion on causal relationship consists only of responding “yes” to a form
question, without explanation or rationale, that opinion is of diminished probative value and is
insufficient to establish a claim.11
Dr. Bhatt diagnosed bilateral wrist tendinitis and a left long trigger finger. She noted in
her reports from February 23 to March 13, 2018 that computer keyboarding and repetitive hand
and wrist motion aggravated appellant’s subjective symptoms. The Board finds that Dr. Bhatt did
not provide adequate medical rationale to establish causal relationship. Dr. Bhatt’s statement on
causation failed to provide a sufficient explanation as to the mechanism of injury pertaining to this
occupational disease claim as alleged by appellant, namely, discussing why the duties of a
respiratory therapist as accepted by OWCP would cause or aggravate her left long trigger finger
or bilateral wrist tendinitis.12 Without explaining how, physiologically, the movements involved
in any specific employment duties caused or contributed to appellant’s diagnosed conditions,
Dr. Bhatt’s opinion on causal relationship is of limited probative value.13 Thus, Dr. Bhatt’s reports
are insufficient to meet appellant’s burden of proof.14
Appellant also submitted report dated March 23, 2018 by Mr. Cardenas, a physician
assistant. The Board has held that medical reports signed solely by a physician assistant are of no
probative value as physician assistants are not considered physicians as defined under FECA and
therefore are not competent to provide a medical opinion.15
On appeal, appellant asserts that Dr. Bhatt had consistently supported causal relationship
and did not “know what more to do” to provide the type of opinion requested by OWCP. As noted
above, OWCP properly denied appellant’s claim as she submitted insufficient reasoned medical
evidence to meet her burden of proof.

11
M.E., Docket No. 18-0330 (issued September 14, 2018); D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty,
54 ECAB 340 (2003).
12

J.I., supra note 6; S.W., Docket No.08-2538 (issued May 21, 2009).

13

J.I., supra note 6. See L.M., Docket No. 14-0973 (issued August 25, 2014).

14

Id.

15

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left long trigger
finger and bilateral wrist tendinitis causally related to accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 14, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
C.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Duluth, GA, Employer
__________________________________________

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

Docket No. 16-1905
Issued: May 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 28, 2016 appellant, through counsel, filed a timely appeal from an
August 18, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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.3
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits effective October 16, 2015.
On appeal appellant, through counsel, contends that the August 18, 2016 decision was
contrary to fact and law.
FACTUAL HISTORY
On December 3, 2014 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sprained a muscle in her lower left back while lifting a tub
of parcels. She stopped work on December 3, 2014.
On the same date appellant received treatment from Dr. Son Thanh Nguyen, a Boardcertified internist, who noted that three hours prior to her visit, appellant had been pulling a 50pound container at work and getting ready to lift it when she felt a shooting pain that started in
her middle back and went up her upper back. He noted that the pain was more on appellant’s left
side. Dr. Nguyen assessed back pain, postural.
On December 5, 2014 Dr. Erin London, a family practitioner and an associate of
Dr. Nguyen’s, noted that appellant’s back pain had not improved, and diagnosed thoracic strain.
She released appellant to return to a modified work program for five days with seated work only
and no bending or extended reaching.
In a December 10, 2014 report, Dr. Jeffrey S. Reed, an osteopath, diagnosed thoracic
strain and back pain postural. He prescribed physical therapy for range of motion and
strengthening/stretching exercises. On December 18, 2014 Dr. Nguyen reiterated his diagnosis
of thoracic strain and back pain postural and returned her to light-duty work with a lifting
restriction of 10 pounds.

2

5 U.S.C. § 8101 et seq.

3

The issue on appeal only concerns the termination of appellant’s medical benefits. Appellant’s wage-loss
benefits were denied in a separate decision, which is not the subject of this appeal. In a decision dated July 7, 2015,
OWCP denied appellant’s claims for disability compensation for the period from March 7 through June 26, 2015
and continuing. It determined that the evidence was insufficient to support that appellant’s disability due to her
employment as the medical evidence showed that the disability was related to her nonwork medical conditions. On
July 10, 2015 appellant, through counsel, requested a telephonic hearing before an OWCP hearing representative
regarding the payment of appellant’s wage-loss benefits. A hearing was held on March 21, 2016 regarding the
termination of appellant’s wage-loss benefits. By decision dated June 1, 2016, the hearing representative affirmed
the July 7, 2015 decision denying wage-loss compensation, finding that the record was devoid of rationalized
medical opinion evidence linking appellant’s disability from work to the accepted work injury. Appellant has not
appealed this decision.

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In a December 31, 2014 report, Dr. Westley A. Bailey, a Board-certified family
practitioner, noted that appellant indicated that she injured her back on December 3, 2014 while
lifting a tub of parcels over 50 pounds. He diagnosed lumbar strain and reported multilevel
lumbar disc protrusions. Dr. Bailey also noted a suspicious area on her lung from her initial
diagnostic tests, and he advised appellant to follow up with pulmonary specialists regarding that
matter.
On December 31, 2014 OWCP accepted appellant’s claim for sprain of the thoracic
region of the back. It paid her medical bills with regard to this injury.
On February 5, 2015 the employing establishment controverted the claim, and submitted
medical evidence which had come to its attention from the Gwinnett Medical Center. This
evidence included progress notes from the Gwinnett Medical Center dated January 21 and 23,
2015, signed by Dr. Tuan Bui, a Board-certified orthopedic surgeon. In the January 21, 2015
report, Dr. Bui noted that appellant had multiple compression fractures of unknown etiology. He
stated, “Apparently, [one] month ago she had an MRI [magnetic resonance imaging] [scan] the
fractures were not there.” Dr. Bui stated that for better evaluation of the fracture pattern and
acuity he would obtain a new MRI scan, and until then, she would be treated conservatively. In
the January 23, 2015 progress note, Dr. Bui noted that appellant had an onset of back pain with
fractures and a pathology of multiple vertebral segments including T5, T8, T9, T11, T12, and L1.
He noted that there was concern for pathologic fractures and possible oncologic source of
etiology. Dr. Bui noted that from an orthopedic spine standpoint, treatment remained the same.
He did not recommend any type of surgical intervention at that time, but rather recommended a
consultation with an oncologist.
On February 5, 2015 OWCP also received additional medical evidence. In a January 20,
2015 report, Dr. Jaymin R. Patel, a Board-certified radiologist, found no aortic dissection,
generalized moderate-to-severe osteopenia throughout the visualized bony structures, and
multiple compression fractures of lower thoracic and upper lumbar and bibasilar predominant
linear infiltrates that may represent atelectasis scarring or less likely pneumonia.
A January 21, 2015 radiology report by Dr. Joseph Finley, a Board-certified radiologist,
found that an upright portable film of the chest demonstrated normal heart and vascularity.
Dr. Finley noted a small infiltrate left infrahilar area overlapping the hemidiaphragm laterally.
Dr. Aurora J. Peacock, a Board-certified radiologist, interpreted a January 22, 2015 MRI
scan as evincing: (1) diffusely abnormal marrow signal with permeative T1 hypointense/STIR
hyperintense lytic lesions throughout the visualized skeleton, and differential considerations
including multiple myeloma or diffuse metastatic disease; (2) multiple chronic appearing
thoracolumbar compression fractures of T5, T8, T9, T11, T12, and L1; and (3) tiny bilateral
pleural effusions.
A February 5, 2015 radiologic consult was interpreted by Dr. Patel as showing no aortic
dissection.
In a February 25, 2015 report, Dr. Bui summarized his treatment of appellant. He noted
that she had returned for follow up of multiple thoracic and lumbar compression fractures.

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Dr. Bui noted that appellant initially injured herself at work, however, during the treatment of her
spine injury, appellant presented with significant pain and had been admitted to the hospital. An
MRI scan was performed that confirmed multiple new compression fractures of the thoracic and
lumbar area, and there was a concern for malignancy and pathology. Dr. Bui noted that a biopsy
confirmed multiple myeloma. He noted that they were treating the fractures nonoperatively with
a brace. Dr. Bui opined that appellant should not work for the next three months, and was
seeking treatment with chemotherapy.
Appellant filed claims for wage-loss compensation CA-7 forms for consecutive periods
beginning March 7, 2015.
In a May 27, 2015 report, Dr. Bui indicated that appellant’s initial injury at work was
likely coincidental, and that she had now reached maximal medical improvement. He did note
that appellant still had muscular complaints. Dr. Bui noted that it was difficult to distinguish
whether or not this was from the original injury or from the new pathologic lesions in her spine.
He recommended physical therapy and that appellant continue wearing a back brace. Dr. Bui
also recommended that appellant should not work secondary to her multiple myeloma
compression fractures.
On September 15, 2015 OWCP proposed terminating appellant’s medical benefits as the
medical evidence reflected that appellant no longer had any remaining residuals of her accepted
work-related medical condition.
By decision dated October 16, 2015, OWCP finalized the termination of appellant’s
medical benefits. It indicated that Dr. Bui found that appellant was at maximum medical
improvement as it related to her accepted back sprain and that her disability was related to her
multiple myeloma (bone cancer). OWCP also noted that on January 2, 2015 Dr. Bailey provided
no opinion concerning the work injury. It concluded that appellant’s medical benefits were
terminated effective that date as the medical evidence established that she no longer had any
remaining residuals of her accepted work-related medical condition.
On October 26, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative regarding the termination of her medical benefits.
In a medical report dated June 7, 2016, Dr. Bui noted that appellant was initially seen at
Gwinnett Medical Center hospital on January 21, 2015 and that he was asked to consult for
severe back pain. He noted that appellant initially injured herself at work on December 3, 2014
after lifting a heavy object. Appellant was treated, but her symptoms were not improving, so an
MRI scan was ordered. The MRI scan subsequently showed no abnormalities aside from some
bulging discs. Dr. Bui indicated that on examination appellant had complaints of paraspinal pain
in the thoracic region as well as pain with any thoracic movement. He noted no complaints of
radicular pain or numbness. Dr. Bui noted that appellant’s diagnoses included both compression
fractures as well as a paraspinal muscle spasm which was present prior to the diagnosis of the
compression factures. He opined that the paraspinal muscle spasm and pain could be directly
related to the lifting injury at work based on appellant’s presentation and history. Dr. Bui noted
that the compression fractures will certainly cause additional thoracic and lumbar pain, but he
also noted that her pain was present prior to this diagnosis as indicated by her essentially normal

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MRI scan as compared to the subsequent MRI scan at the hospital. He concluded that one of the
causes of her pain was certainly the work-related injury.
A hearing was held on June 13, 2016, regarding the termination of appellant’s medical
benefits. Appellant testified that she was not working and was receiving social security
disability benefits. She stated that she had worked for the employing establishment for 12 years.
Appellant testified that she was not getting any treatment for her muscle spasm and was not
getting chemotherapy because her doctor would not accept insurance.
By decision dated August 18, 2016, the hearing representative affirmed OWCP’s
October 16, 2015 termination of appellant’s medical benefits because the record of evidence did
not contain rationalized medical evidence relating any further need for medical care to the
accepted work injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 The right to medical benefits for an accepted condition
is not limited to the period of entitlement to compensation for disability.5 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.6
ANALYSIS
On December 31, 2014 OWCP accepted appellant’s claim for sprain of the thoracic
region of the back. By decision dated October 16, 2015, it terminated medical benefits because
appellant had no more residuals of her accepted sprain of the thoracic region of the back.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits.
Dr. Bui noted that appellant had reached maximum medical improvement from the
employment-accepted conditions as of his May 27, 2015 report. He noted that appellant had
multiple myeloma compression fractures. Dr. Bui opined that it did appear that the initial injury
at work was likely coincidental, but that appellant still had muscular complaints. Dr. Bui opined
that it was difficult to distinguish whether these complaints were from the employment injury or
from the new pathologic lesions in her spine. In fact, he noted that one of the causes of
appellant’s pain was certainly the employment injury and he referred appellant for physical
therapy. The medical reports of record from Dr. Bui are insufficient to establish that appellant’s
accepted thoracic sprain had resolved.7
4

Curtis Hall, 45 ECAB 316 (1994).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

Calvin S. Mays, 39 ECAB 993 (1988).

7

Supra note 6.

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OWCP bears the burden of proof to provide medical evidence demonstrating that
appellant has no residuals of the accepted work-related injury.8
The record reflects that much of appellant’s back pain is due to another more serious
condition. Dr. Bui, however, did find that one of the causes of appellant’s pain was certainly the
employment injury. As the medical evidence establishes that appellant continues to have some
residuals attributable to the accepted thoracic sprain, the Board finds that OWCP failed to meet
its burden of proof to terminate medical benefits.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate medical
benefits effective October 16, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 18, 2016 is reversed, and the case is remanded to OWCP
for further action consistent with this opinion.
Issued: May 25, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

3

thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

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). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

5

from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

6

these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her 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.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Little Rock, AR, Employer
__________________________________________

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

Docket No. 12-949
Issued: October 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 19, 2012 appellant filed a timely appeal from a December 13, 2011 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 reduced appellant’s compensation on the grounds
that the selected position of receptionist represented his wage-earning capacity.
FACTUAL HISTORY
On February 13, 1989 appellant, then a 30-year-old flat sorting machine operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained a right arm injury as a result
of his federal employment. OWCP accepted the claim for a permanent aggravation of a
1

5 U.S.C. § 8101 et seq.

preexisting right elbow arthritic condition. By decision dated June 22, 1995, OWCP found that
appellant’s actual earnings in a modified distribution clerk position fairly and reasonably
represented his wage-earning capacity.
On August 16, 2010 appellant filed a recurrence of total disability claim stating that his
light-duty position would be terminated due to the National Reassessment Process (NRP). He
indicated that his pay would cease as of September 15, 2010. In a report dated September 8,
2010, Dr. Jay Lipke, an orthopedic surgeon, diagnosed work-related post-traumatic osteoarthritis
of the right elbow. He completed a duty status report (Form CA-17) providing appellant’s
current work restrictions. The restrictions included a 10-pound lifting restriction and two to four
hours a day intermittent pushing and pulling.
In a decision dated December 3, 2010, OWCP stated that based on the evidence the
June 22, 1995 wage-earning capacity determination was modified. It found that appellant’s
employment-related condition had materially changed and he was entitled to compensation for
wage loss as of September 15, 2010.
By letter dated January 14, 2011, OWCP advised appellant that he was being referred for
vocational rehabilitation services. In a letter dated March 31, 2011, a rehabilitation counselor
requested that Dr. Lipke review the job descriptions for the positions of receptionist, hotel clerk,
automobile rental clerk and stock clerk. The counselor requested that Dr. Lipke review the
positions and address whether appellant could perform the job duties. In a response received on
April 29, 2011, Dr. Lipke stated “yes he can” with respect to whether appellant could perform
the job duties of the enclosed job descriptions. He advised that appellant’s current work
restrictions were permanent in nature.
The record contains a job classification form (CA-66) dated April 27, 2011 for the
position of receptionist (Department of Labor’s Dictionary of Occupational Titles No. 237.367038). The position was described as sedentary with a strength level that included occasional
lifting of up to 10 pounds. The rehabilitation counselor stated that the weekly wages were
$314.21 and the job was reasonably available in appellant’s commuting area based on state labor
market information. By report dated September 26, 2011, the counselor stated that labor market
research completed that day found that the position of receptionist was readily available in
appellant’s local labor market.
By letter dated November 1, 2011, OWCP advised appellant that it proposed to reduce
his monetary compensation. It found that he had the capacity to earn wages of $314.21 a week
as a receptionist. Appellant was advised that, if he disagreed with this proposal, he had 30 days
to submit evidence or argument.
In a letter dated November 17, 2011, appellant disagreed with the proposal to reduce his
compensation. He contended that he could work part time at the employing establishment with
his current work restrictions. Appellant stated that he had asked the employing establishment for
light duty but his requests were denied.
By decision dated December 13, 2011, OWCP reduced appellant’s compensation on the
grounds that he had the capacity to earn wages of $314.21 per week as a receptionist. It found

2

that his current pay rate for the date-of-injury job was $933.58 per week and his wage-earning
capacity was 34 percent.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits. When an individual sustains an employment-related injury that
prevents return to the employment held at the time of injury, but that does not render the
employee totally disabled for all gainful employment, the employee is considered partially
disabled and is entitled to compensation for his loss of wage-earning capacity as provided for
under 5 U.S.C. § 8115.2
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his wage-earning capacity.
If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if the
employee has no actual earnings, his wage-earning capacity is determined with due regard to the
nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect his wage-earning capacity in his disabled condition.3
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.4 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
ANALYSIS
In the present case, appellant did not have any actual earnings as of September 15, 2010.
Based on the evidence of record, OWCP modified the 1995 wage-earning capacity determination
and reinstated full monetary benefits and referred him for vocational rehabilitation.
OWCP selected the position of receptionist as representing appellant’s wage-earning
capacity. In accord with established procedures, the rehabilitation counselor found that the
2

5 U.S.C. § 8115.

3

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

4

See Dennis D. Owen, 44 ECAB 475 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining
Wage-Earning Capacity, Chapter 2.814.8 (October 2009).
5

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

3

position was vocationally suitable based on appellant’s employment history and educational
qualifications. In addition, the counselor also found that the position was reasonably available in
appellant’s commuting area based on state market information.
Dr. Lipke, the attending physician, reviewed the job description and found that appellant
could perform the job duties. There is no other probative medical evidence on the issue and the
weight of medical opinion rested with Dr. Lipke. The Board finds that the evidence of record
supports a finding that the selected position was medically suitable.
According to the rehabilitation counselor, the reported wages for an entry-level position
as a receptionist were $314.21 per week. No contrary evidence was provided. In accord with
OWCP procedures, appellant was provided with a prereduction notice advising him of the
proposed reduction in compensation.6 He responded with a November 17, 2011 letter stating
that he had tried to find a position with the employing establishment, but was told that none was
available. When a claimant does respond to a notification of proposed reduction, OWCP should
consider the claimant’s response.7 In the December 13, 2011 decision, it did consider appellant’s
response, noting that job offers and assignments are issues that may be raised with the employing
establishment. Appellant’s stated preference to work with his former federal employer does not
preclude a determination regarding his wage-earning capacity.
The Board finds that the selected position was medically and vocationally suitable, and
that OWCP followed its procedures with respect to determining his wage-earning capacity based
on a selected position in the labor market. As noted, the formula used to compute appellant’s
loss of wage-earning capacity is based on the Shadrick case and OWCP regulations. The current
pay rate for the date-of-injury position is compared with the current pay rate for the selected
position and a percentage is determined.8 In this case, OWCP found that appellant’s current pay
rate for the date-of-injury position was $933.58 per week, and the pay rate for the selected
position was $314.21 per week. It found that he had a 66 percent loss of wage-earning capacity
and his monetary compensation was accordingly adjusted.
Based on the evidence of record, the Board finds that OWCP properly applied 5 U.S.C.
§ 8115 and determined appellant’s wage-earning capacity based on the selected position of
receptionist. Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that the evidence of record supports OWCP’s determination that the
selected position of receptionist represented appellant’s wage-earning capacity.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter
2.814.8(e)(1) (October 2009).
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.8 (March 1997).

8

See 20 C.F.R. § 10.403.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 13, 2011 is affirmed.
Issued: October 15, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison New, Jersey, Employer
__________________________________________

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

Docket No. 13-2178
Issued: March 6, 2014

Case Submitted on the Record

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

JURISDICTION
On September 30, 2013 appellant, through her attorney, filed a timely appeal from an
April 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) that
terminated her compensation and medical benefits. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective October 19, 2012; and (2) whether appellant met her burden of
proof to establish any continuing disability or medical residuals on or after October 19, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2011 appellant, then a 24-year-old mail carrier, filed a traumatic injury
claim alleging that she developed low back pain that day while lifting a bucket of mail in the
performance of duty. OWCP accepted her claim for a lumbar strain on October 28, 2011.
A magnetic resonance imaging scan obtained on November 8, 2011 demonstrated
bulging discs at L4-5 and L5-S1.
In a report dated December 5, 2011, appellant’s attending physician, Dr. Steven G.
Dorsky, a Board-certified orthopedic surgeon, stated that appellant was currently totally disabled
and required medication, physical therapy and epidural steroid injections.
Dr. Brett Gerstman, a Board-certified orthopedic surgeon, examined appellant on
December 27, 2011. He reported a full range of motion of the lumbar spine, normal motor
strength and decreased sensation to light touch along the left L5 dermatome. Dr. Gerstman
recommended physical therapy and epidural steroid injections.
On January 2, 2012 Dr. Gerstman diagnosed lumbar radiculopathy. He recommended
physical therapy and epidural steroid injections. Dr. Gerstman provided an injection on
January 18, 2012. He completed a work restriction on January 23, 2012 and recommended that
appellant return to sedentary work with lifting up to 10 pounds and primarily sitting with a small
amount of standing and walking. In a note dated January 30, 2012, Dr. Gerstman recommended
more advanced diagnostic testing to better evaluate whether she had underlying nerve damage.
He stated that appellant could perform light-duty work, if available. On January 31, 2012
Dr. Gerstman advised that she could return to light duty lifting up to 20 pounds. On February 7,
2012 he found that electromyogram and nerve conduction velocity testing demonstrated
evidence of an acute left-sided S1 radiculopathy. Dr. Gerstman recommended further steroid
injections and medications. On February 17, 2012 he indicated that appellant could return to
light work lifting up to 20 pounds as of February 20, 2012. Dr. Gerstman performed L5-S1 and
L1-S1 transforaminal epidural steroid injections on February 29, 2012.
OWCP authorized
February 21, 2012.

compensation

benefits

from

November 3,

2011

through

On March 1, 2012 Dr. Gerstman advised that appellant could return to light-duty work
lifting up to 20 pounds for four hours a day, five days a week beginning March 1, 2012.
The employing establishment noted that appellant returned to part-time limited duty on
February 22, 2012.
On March 2, 2012 Dr. Gerstman stated that appellant was cleared for part-time light duty.
He completed a report on March 8, 2012 and stated that she was experiencing an acute
exacerbation of her pain after being required to lift more than 20 pounds.
Dr. Dorsky completed a work restriction evaluation on March 16, 2012. He opined that
appellant could return to full duty and that she had reached maximum medical improvement as
of that date.
2

Appellant stopped work on March 16, 2012. In a narrative report dated March 19, 2012,
Dr. Dorsky stated that she could return to work on a full and unrestricted basis, but that she had
not yet reached maximum medical improvement.
On March 30, 2012 Dr. Gerstman noted that while appellant had returned to full-time
work her current work load aggravated her back pain. He recommended additional medication.
In a report dated April 10, 2012, Dr. Gerstman noted that appellant reported difficulties with her
full-time work and recommended a functional capacity evaluation. He also increased her pain
medication. Dr. Gerstman indicated that appellant could work full time without restrictions.
On April 17, 2012 Dr. Gerstman found that appellant could perform full-time work and
that she had reached maximum medical improvement. In a report dated April 19, 2012, he noted
that she had been misleading him regarding her work capacity. Dr. Gerstman believed that
appellant was working since March 16, 2012, but that she confirmed that this was not the case.
He stated that she continued to have symptoms secondary to left-sided S1 radiculopathy.
Appellant had maximized conservative measures and there was no further treatment
Dr. Gerstman could offer her as she was not a surgical candidate. Dr. Gerstman stated that she
had reached maximum medical improvement and was cleared to return to work on a full-time
basis without restrictions since March 16, 2012.
OWCP proposed to terminate appellant’s medical benefits and wage-loss compensation
on June 20, 2012. It found that Dr. Gerstman established that appellant’s work-related medical
condition and disability had ceased. Appellant did not submit any additional medical evidence.
By decision dated October 19, 2012, OWCP terminated appellant’s medical and wageloss benefits effective October 19, 2012.
Counsel requested an oral hearing before an OWCP hearing representative on
October 29, 2012. Appellant testified at the oral hearing held on February 6, 2013 that she was
unable to return to work due to her back injury.
In a decision dated April 30, 2013, OWCP’s hearing representative found that OWCP
met its burden of proof to terminate appellant’s compensation benefits as of October 19, 2012.
Appellant did not submitted sufficient evidence to establish continuing residuals or disability
after that day.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.3 Furthermore, the right to medical benefits for an
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

3

accepted condition is not limited to the period of entitlement for disability.4 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for a lumbar sprain. Appellant sought medical
treatment from Drs. Dorsky and Gerstman. The physicians supported her need for medical
treatment and disability for work until April 17, 2012. Dr. Gerstman indicated on that date that
appellant could perform full-time work and that there was no further treatment that he could
provide her as she was not a surgical candidate. He found that she had reached maximum
medical improvement and was cleared to return to work on a full-time basis without restrictions
as of March 16, 2012.
There is no medical evidence of record to support appellant’s continued medical residuals
or disability after April 17, 2012. Appellant’s physicians found that she could return to work at
full time without restrictions and did not require further medical treatment. The Board finds that
based on the medical evidence OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective October 19, 2012.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had disability causally related to her accepted
employment injury.6 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s detailed
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant. The weight of medical evidence is determined by its reliability, its probative value,
its convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

George Servetas, 43 ECAB 424, 430 (1992).

7

James Mack, 43 ECAB 321 (1991).

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ANALYSIS -- ISSUE 2
Appellant did not submit any medical opinion evidence after OWCP’s October 19, 2012
termination decision which supported her need for further medical treatment or her disability for
work on or after October 19, 2012. As she failed to submit the necessary medical opinion
evidence, she failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the record does not establish that appellant has any continuing
disability or medical residuals on or after October 19, 2012 causally related to her accepted
employment injury. Thus, OWCP properly terminated wage-loss and medical benefits and
appellant has failed to establish continuing employment-related disability or residuals.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2013 is affirmed.
Issued: March 6, 2014
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Wichita, KS, Employer
__________________________________________

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Appearances:
Paul Joslin, Esq., for the appellant
No appearance, for the Director

Docket No. 07-226
Issued: May 2, 2008

Oral Argument March 20, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 1, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 13, 2006, with respect to her right knee
claim. 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 established a period of disability causally related to her
accepted right knee sprain/strain.
FACTUAL HISTORY
On August 26, 2005 appellant filed a traumatic injury claim (Form CA-1) alleging that
she sustained a right knee injury while in the performance of duty on August 7, 2005. She stated
that she tripped and fell at a checkpoint while reaching for a property bowl. The record indicates
appellant had been working a light-duty position on August 7, 2005 as a result of an

employment-related back strain. A form report dated July 15, 2005 from Dr. Edward Cusick, an
attending osteopath, included a 20-pound lifting restriction, 2 hours walking or standing, and 15
minutes per hour of intermittent bending or stooping. Appellant had received a notice of
proposed removal from employment on July 19, 2005 for unsatisfactory attendance and abuse of
leave. Her employment was terminated August 25, 2005.
The Office accepted the claim for a right knee sprain/strain. In an undated form report
(CA-20), Dr. Cusick diagnosed lumbar strain and right knee strain. He reported a period of
partial disability from August 7 to 29, 2005.
In a treatment note dated September 6, 2005, Dr. Cusick diagnosed lumbar strain, chronic
but improved, and right knee strain, also improved. He stated, “Avoid bending, stooping and
lifting. [Appellant] is still on 20 [pounds] lifting restriction at work. No repetitive bending of
the knees. [Appellant] should n[o]t be standing more than two [hours] at a time.” In a narrative
report dated October 5, 2005, Dr. Cusick provided a history that appellant had twisted her knee
at work and developed knee pain. He reported that appellant had initially been treated for knee
symptoms by a Dr. Couch, and on August 22, 2005 she still had tenderness over the medial
collateral ligament. According to Dr. Cusick, appellant was last seen on September 6, 2005 and
her knee was almost back to normal. He stated that appellant was having a little pain and was
told to avoid repetitive bending. By report dated November 7, 2005, Dr. Cusick reiterated the
history provided in his October 5, 2005 report and concluded that appellant had a 20-pound
lifting restriction, no standing more than two hours and no repetitive bending.
In a decision dated January 5, 2006, the Office found that appellant had not established
any period of disability causally related to the right knee sprain/strain. The Office also found
that appellant was not entitled to continuation of pay.
Appellant requested reconsideration and submitted a report dated January 17, 2006 from
Dr. Cusick, who repeated the prior history and stated that appellant had been released to work on
light duty on September 26, 2005.
By decision dated April 13, 2006, the Office denied modification of the January 5, 2006
Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability for
which compensation is claimed are causally related to the employment injury.2 Whether a
particular injury causes an employee to be disabled for work, and the duration of that disability,
are medical issues that must be proved by a preponderance of the reliable, probative and
substantial medical evidence.3
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

2

ANALYSIS
At the time of the August 7, 2005 injury appellant was working a full-time light-duty
position based on work restrictions provided by Dr. Cusick. According to his July 15, 2005
report, appellant was limited to 20 pounds lifting, 2 hours standing or walking, with intermittent
bending, stooping or twisting of no more than 15 minutes per hour.
The Office accepted that appellant sustained a right knee sprain/strain on August 7, 2005.
It is appellant’s burden to submit probative and reliable medical evidence that establishes
disability for work as a result of her knee injury. Since appellant was working a light-duty
position when injured, she must submit medical evidence showing that she was unable to
perform the light-duty job as a result of the accepted August 7, 2005 knee injury.4
Dr. Cusick did not provide a report that established disability for the light-duty job. He
provided specific work restrictions in a September 6, 2005 treatment note, when he limited
appellant to 20 pounds lifting, two hours standing and no repetitive bending. It does not appear,
however, that these restrictions represented any change in appellant’s ability to work. The prior
restrictions limited lifting to 20 pounds, standing of two hours and bending to intermittent, shortterm periods. Dr. Cusick did not find that appellant was unable to perform her light-duty job.
He did not provide a rationalized medical opinion supporting a period of total disability.
Dr. Cusick referred in his January 17, 2006 report of “releasing” appellant to light duty on
September 26, 2005.
In the absence of probative medical evidence, the Board finds that appellant did not meet
her burden of proof in this case. The Office properly determined that appellant had not
established entitlement to compensation for wage loss as a result of the August 7, 2005 right
knee sprain/strain.
CONCLUSION
The medical evidence of record is not sufficient to establish a period of disability causally
related to the August 7, 2005 employment injury.

4

The term “disability” as used under the Act means the incapacity, because of injury in employment, to earn the
wages which the employee was receiving at the time of injury. Donald Johnson, 44 ECAB 540, 548 (1993); 20
C.F.R. § 10.5(17).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 13 and January 5, 2006 are affirmed.
Issued: May 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-248
Issued: May 29, 2013

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 November 23, 2012 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated October 30, 2012 denying his claim for compensation.
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 that he sustained an employment-related injury
to his right wrist on December 10, 2010, as alleged.
FACTUAL HISTORY
On August 12, 2012 appellant, then a 65-year-old custodian/laborer, filed a traumatic
injury claim alleging that on December 10, 2010, while moving a heavy file cabinet, he lost
control and the file cabinet pulled him, causing an injury to his right wrist.

1

5 U.S.C. § 8101 et seq.

Appellant received treatment from physicians at Kaiser Permanente. In an August 24,
2012 Doctor’s First Report of Occupational Injury or Illness, Dr. Tiffany Baer, a Board-certified
internist, indicated that appellant injured his right wrist while moving furniture approximately
two years ago. She diagnosed sprain or strain of the wrist. Dr. Baer stated that appellant treated
himself with a brace which he wears almost every day. She stated that he thought the mild pain
would improve on its own. Dr. Baer noted that appellant had not missed any work and that he
was able to perform his usual work. She further indicated that appellant works a lot with his
hands at the employing establishment, so there is a cumulative aspect to the pain. An x-ray was
interpreted as showing no acute bony injury of the wrist. With regard to causation, Dr. Baer
stated that the mechanism was consistent with her clinical examination findings and no
information had been presented that would indicate a cause other than the alleged employment
event/exposure.
In a progress form report dated August 31, 2012, Dr. Charles LaRoche, a physician
Board-certified in occupational medicine, diagnosed appellant with sprain or strain of the wrist.
He initially listed that date of injury as December 14, 2010, but later in the report noted that there
was apparently a remote injury in November 2011. Dr. LaRoche noted that, since that time,
appellant complained of ongoing right wrist pain with gripping possibly exacerbated by the more
repetitive aspects of his work. He noted no evidence of acute fracture or dislocation.
Dr. LaRoche indicated that appellant could return to full-duty work on that date. In a
September 21, 2012 report, he noted that appellant had no pain at present, but occasional pain
with forceful gripping, primarily at the ulnar wrist. Dr. LaRoche noted full range of motion. In
an October 12, 2012 report, he noted that appellant had completed a four-week physical therapy
course. Dr. LaRoche noted that appellant denied any current pain, although he did report
occasional mild discomfort over the back and sides of the wrist with certain activities, but overall
felt he was back to preinjury status.
By decision dated October 30, 2012, OWCP denied appellant’s claim. It determined that,
although appellant established that he was a federal civilian employee who moved a file cabinet
on December 10, 2010, and had established that he sustained a right wrist strain, now resolved,
he had failed to establish causal relationship between the accepted December 10, 2010 incident
and the right wrist injury.
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 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 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 upon a traumatic injury or an
occupational disease.2
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
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

2

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 or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the 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.6
ANALYSIS
OWCP accepted that appellant established that on December 11, 2011 he experienced an
employment incident when he was moving a heavy file cabinet. It further found that he suffered
a right wrist strain that had since resolved. However, OWCP denied appellant’s claim as he
failed to establish a causal relationship between the accepted employment incident and the right
wrist strain.
The Board finds that appellant has failed to provide sufficient medical evidence to
establish that he suffered an injury causally related to the accepted December 10, 2010
employment incident. As noted above, medical evidence is needed to establish causal
relationship.7 Drs. Baer and LaRoche both examined appellant more than 18 months after the
December 10, 2010 employment incident. Neither physician gave a definite statement linking
appellant’s wrist injury to the remote employment injury. Dr. Baer stated that there was no other
cause listed other than the alleged employment incident, although she did note that there may be
a cumulative aspect to the injury. Dr. LaRoche noted that, since the time of the employment
incident, appellant has had occasional pain. Neither physician offered supporting medical
rationale linking the work incident of December 10, 2010 to the right wrist injury that Dr. Baer
first noted on August 24, 2012. The Board finds that medical conclusions unsupported by

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

J.R., Docket No. 12-1704 (issued February 12, 2013).

3

medical rationale are of diminished probative value and are insufficient to establish causal
relation.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition worsened during a period of employment nor his belief
that his condition was caused by his employment is sufficient to establish causal relationship.9
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.10 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an employmentrelated injury to his right wrist on December 10, 2011, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2012 is affirmed.
Issued: May 29, 2013
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

Albert C. Brown, 52 ECAB 152 (2000).

9

M.J., Docket No. 12-534 (issued July 26, 2012).

10

20 C.F.R. § 501.2(c).

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