United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
B.T., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TRAINING & DOCTRINE COMMAND,
Fort Rucker, AL, Employer
__________________________________________

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

Docket No. 14-1332
Issued: November 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2014 appellant filed a timely appeal from the March 31, 2014 Office of
Workers’ Compensation Programs’ (OWCP) decision which affirmed a prior decision denying
his claim for a recurrence. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on February 7, 2013 causally related to his May 22, 1997 injury.
FACTUAL HISTORY
On June 4, 1997 appellant, then a 45-year-old heating and air conditioning mechanic,
filed a traumatic injury claim alleging that on May 22, 1997 he sustained injuries to his lower
1

5 U.S.C. § 8101 et seq.

back installing an air conditioner compressor in the performance of duty. He was treated
conservatively and returned to light duty on May 31, 1997 and continued working until he retired
from the employing establishment on January 10, 1998.2 On September 10, 1997 OWCP
accepted the claim for sprain of the back and lumbar region.
In a January 5, 2000 report, Dr. Robert W. Moore, a Board-certified orthopedic surgeon,
noted that appellant continued to have pain in his legs but he was handling it well and he did not
see any deterioration. He recommended that appellant continue to work and seek treatment as
necessary.
In a January 13, 2000 report, Dr. Moore noted that appellant injured his back at work in
May 1997 when he was lifting an air conditioner compressor. He indicated that appellant was
initially seen by him in August 1997 and he began a conservative treatment program. Dr. Moore
explained that he had a magnetic resonance imaging (MRI) scan which revealed a probable
herniated lumbar disc at the L4-5 level. He advised that appellant received conservative
treatment over the years to include inflammatory medications and epidural injections. Dr. Moore
explained that appellant was a candidate for surgical discectomy with possible fusion; however,
he had a great fear of surgery and declined any operative intervention. He opined that
appellant’s symptoms were secondary to his injury in May 1997.3
On February 15, 2013 appellant filed a Form CA-2a, recurrence claim, claiming a
recurrence for medical treatment beginning February 7, 2013. He noted that, on or about
February 7, 2013, he was performing his regular activities and began to feel the same pain in his
back tingling down his right leg and hip. Appellant advised that the next morning, he could
hardly get out of bed because the pain was excruciating. He indicated that he believed that his
symptoms were related to the original 1997 work injury because he had the “same exact pain and
symptoms” as he had with the original injury. Appellant alleged that, after his original injury, he
returned to light duty for the duration of his time at the employing establishment until his
retirement in February 2011. He noted that he subsequently had worked for a private employer
as an “HVAC” mechanic since February 2001. Appellant noted that his duties included:
repairing air conditioning units, ice machines, refrigerators and control thermostats. He also
noted that he worked 40 hours per week.
By letter dated March 4, 2013, OWCP notified appellant of the evidence necessary to
establish his claim for a recurrence of a medical condition causally related to his accepted work
injury. It requested a medical report from a physician explaining how any renewed need for
medical treatment was causally related to a spontaneous worsening of his 1997 work injury,
rather than due to an intervening injury or exposure to new work factors.

2

The record indicates that he later returned to work with the employing establishment before retiring again in
2001.
3

This report was submitted to OWCP along with a January 12, 2000 recurrence of disability claim, for which
appellant indicated that he did not stop work. The record does not indicate that OWCP developed this recurrence
claim. Following this, the claim was dormant from September 30, 2001, when Dr. Moore provided work
restrictions, until February 2013.

2

OWCP received clinical notes from a healthcare provider with an illegible signature
dating from November 28, 2005 through January 25, 2006. These documents indicated that
appellant sustained an injury to his back on November 28, 2005 at 2:00 p.m. while changing a
motor and “developed pain in the lower back with pain radiation to [left] leg.” OWCP also
received nurses’ notes.
A February 18, 2013 emergency room note provided by Dr. John A. Powell, a Boardcertified internist, revealed that appellant had complaints of lower back pain and noted that he
had a history of back injury in 1997. Dr. Powell noted that appellant related that he was advised
to have back surgery but he never proceeded with the surgery and had no follow up for his back.
He also related that he indicated that he had intermittent back pain and last week it worsened.
Dr. Powell noted that appellant denied any recent injury, weakness, fever or incontinence. He
diagnosed chronic low back pain, acute sciatica and degenerative disc disease.
A February 18, 2013 x-ray report of the lumbar spine read by Dr. William W. Beckett, a
Board-certified diagnostic radiologist, revealed chronic lower lumbar degenerative disc and joint
disease mild to moderate with no acute findings. Dr. Beckett noted that appellant had no recent
injury.
A March 1, 2013 MRI scan of the lumbar spine read by Stephen L. Fernandez, a Boardcertified diagnostic radiologist, revealed low back pain radiating down the right leg and broadbased disc bulges at L1-2, L2-3, L3-4 and L4-5, and moderate multilevel degenerative disc
disease, with central canal stenosis, most significant at L4-5.
OWCP received treatment notes dated February 27 and March 1 and 4, 2013 from
Dr. Harry Weiser, a Board-certified neurological surgeon, who found low back pain and
radiculopathy.
March 5, 2013 reports from Dr. Ronnie Wiggins, a Board-certified
anesthesiologist, revealed that appellant had low back pain associated with right leg sciatica.
Dr. Wiggins noted that appellant received a lumbar epidural injection approximately 15 years
ago.
In a March 10, 2013 statement, appellant noted that he “always had minor pain in my
lower back and legs from my injury in 5-22-97.” He advised that he had an epidural injection in
his back for pain and it stopped this pain until now. Appellant advised that his symptoms had
been with him and they came and went, especially when walking and standing for long periods.
He denied that he sustained any new injuries or received medical treatment since he was treated
for his prior injury. In a May 1, 2013 statement, appellant noted that a week prior to
February 18, 2013, his symptoms worsened such that he had to visit the emergency room on
February 18, 2013. He explained that his pain was continuous and never stopped. Appellant
indicated that, when he was being treated for the original 1997 injury, he was told that he would
need back surgery for the injury “at some point.” He indicated that he worked up until
February 18, 2013, when he stopped working.
In an April 30, 2013 report, Dr. David H. Evans, Board-certified in pain medicine, noted
that appellant was seen for complaints of low back and right leg pain. He related that appellant
had the same pain in “97/98” which required a series of “three LES1 procedures.” Dr. Evans
performed a lumbar epidural.

3

By decision dated June 6, 2013, OWCP denied the claim for recurrence. It found that
appellant did not establish that he sustained spontaneous worsening of his 1997 work injury
which required new medical treatment.
On June 19, 2013 appellant requested a hearing, which was held telephonically on
January 22, 2014. At the hearing, he reiterated that he originally injured his back in 1997 at
work and chose not to have surgery at that time. Appellant explained that he did not have a new
injury with his back during his private employment because he continued to be injured from the
original work injury. He stated that he currently was being treated with epidural injections.
Appellant stated that in 2005, he was pushing a motor with his leg when he pulled his groin. He
stated that he was not lifting. Appellant stated that he did not injure his back in 2005. He stated
that he retired from the employing establishment in February 2001 and began working in the
private sector as an HVAC mechanic. Appellant indicated that his new position required lifting
up to 60 pounds, bending, twisting and moving equipment. He also advised that he had not seen
a physician from 2005 to February 2013 for his back condition, but was taking over-the-counter
medication. Appellant stated that his symptoms then worsened in February 2013 to the point of
requiring new medical treatment.
By decision dated March 31, 2014, OWCP hearing representative affirmed the June 6,
2013 decision. He specifically noted that appellant had not provided medical evidence from a
physician, supported by medical rationale and objective findings, to explain whether and how his
need for treatment was causally related to his 1997 work injury rather than exposure to injurious
work factors for over 10 years in private employment, or the 2005 private employment incident,
or to normal age-related degeneration.
LEGAL PRECEDENT
A recurrence of medical condition refers to a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original treatment or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.4
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for
additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.5

4

20 C.F.R. § 10.5(y).

5

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

4

ANALYSIS
OWCP accepted appellant’s claim for sprain of the back and lumbar region. Appellant
returned to light duty on June 11, 1997. He indicated that in 2001 he began work for a private
employer as an HVAC mechanic. Appellant subsequently claimed a recurrence of disability for
medical treatment beginning February 7, 2013.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was causally related to the accepted injury.6 There are no medical records from late 2001 until
February 2013. Although OWCP received clinical notes from a healthcare provider with an
illegible signature dating from November 28, 2005 through January 25, 2006, these documents
cannot be considered probative medical evidence.7 Furthermore, the November 28, 2005 note
indicates that appellant sustained a new injury to his back while changing a motor. This is
significant since appellant was not working for the employing establishment at that time.
Appellant submitted a February 18, 2013 emergency room note from Dr. Powell, who
noted that appellant had complaints of lower back pain and a history of back injury in 1997.
Dr. Powell also related that appellant indicated that he had intermittent back pain that had
recently worsened. However, he did not offer any opinion regarding the cause of the diagnosed
conditions. 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
OWCP received treatment notes dated February 27 and March 1 and 4, 2013 from
Dr. Weiser, who found low back pain and radiculopathy and March 5, 2013 reports, from
Dr. Wiggins, who advised that appellant had low back pain associated with right leg sciatica.
Additionally, OWCP received an April 30, 2013 report from Dr. Evans, who noted that appellant
was seen for complaints of low back and right leg pain. Dr. Evans related that appellant had the
same pain in “97/98” which required a series of “three LES1 procedures.” He performed a
lumbar epidural. The Board notes that these reports are also of limited probative value as they
offer no opinion on causal relationship. Likewise, other medical reports submitted by appellant,
such as diagnostic reports, are insufficient to establish the claim as they do not specifically
address how any condition on or after February 7, 2013 is causally related to the original
employment injury.
OWCP received nurses’ notes. However, nurses are not “physicians” as defined under
FECA. Their opinions are of no probative value.9
6

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

7

D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification cannot be considered as probative
evidence in support of a claim). See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be
given by a qualified physician).
8

Jaja K. Asaramo, 55 ECAB 200 (2004).

9

See Roy L. Humphrey, 57 ECAB 238 (2005); see also supra note 7.

5

Accordingly, the Board finds that appellant has not met his burden of proof in this case as
he has not submitted a sufficiently reasoned medical opinion explaining why his recurrence of
disability beginning February 7, 2013 was caused or aggravated by the May 22, 1997 injury.
On appeal, appellant argued that his physician was supposed to submit new evidence to
OWCP; however, he never did.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on February 7, 2013 causally related to his May 22, 1997 injury.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
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and
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DEPARTMENT OF JUSTICE, FEDERAL
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BUREAU OF PRISONS, San Juan, PR, Employer )
__________________________________________ )
J.O., Appellant

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

Docket No. 16-0905
Issued: January 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 25, 2016 appellant filed a timely appeal from a January 19, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment to each
upper and lower extremity, for which he previously received schedule awards.
FACTUAL HISTORY
On September 28, 2001 appellant, then a 33-year-old correctional officer, filed a
traumatic injury claim (Form CA-1) alleging that he sustained injuries on August 25, 2001 when
a heavy jug fell on him. OWCP has accepted the claim for low back sprain, and cervical
1

5 U.S.C. § 8101 et seq.

radiculopathy, right C6 and bilateral C8-T11. Appellant was off work from August 25, 2001 to
November 15, 2002, then had a recurrence of disability commencing April 6, 2003. He received
wage-loss compensation on the periodic rolls through April 2, 2014, when he elected Office of
Personnel Management (OPM) benefits.
The record contains an April 13, 2014 report of a cervical electromyogram and nerve
conduction velocity report for the upper extremities. There is also a similar electrodiagnostic
study for the lower extremities performed on December 16, 2014.
In a report dated May 3, 2015, Dr. Tomas Hernández Ortiz, a neurologist, provided a
history and results of an April 28, 2015 examination. He reported moderate loss of fingering and
grip strength, with no sensory deficit in any of the modalities tested. Dr. Hernández Ortiz
provided a whole person impairment of 16 percent under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009) using a
“Spine and Pelvis impairment calculation methodology” for the cervical and lumbar spine.
OWCP requested that an OWCP medical adviser, Dr. Henry Magliato, review the report
from Dr. Hernández Ortiz and provide an opinion as to the extent of appellant’s permanent
impairment. In a report dated June 16, 2015, Dr. Magliato opined that the report of
Dr. Hernández Ortiz was of no value in determining a permanent impairment under the A.M.A.,
Guides. He indicated that Dr. Hernández Ortiz had used diagnostic grids for the spine and whole
person impairment, which were inappropriate under FECA. Dr. Magliato recommended referral
to a second opinion physician.
On July 20, 2015 OWCP received a revised report dated July 11, 2015 from
Dr. Hernández Ortiz. The examination results from April 28, 2015 were repeated, but
Dr. Hernández Ortiz provided an opinion as to permanent impairment based on The Guides
Newsletter. For the upper extremities, Dr. Hernández Ortiz opined that there was one percent
impairment for sensory deficit and five percent for motor deficit of C6 root and T1 nerve roots.
He indicated that, although only a right C6 root lesion was accepted, it was bilateral upper
extremity impairment. Dr. Hernández Ortiz then reported that there would be 12 percent total
permanent impairment for the bilateral C8-T1 root lesions for a total of 18 percent for the upper
extremities nerve involvement. As to the lower extremities, he opined that there would be one
percent for sensory deficit and three percent for motor deficit to each lower extremity.
OWCP referred appellant for a second opinion examination with Dr. Fernando Rojas, an
orthopedic surgeon. In a report dated September 22, 2015, Dr. Rojas provided a history and
results on an August 28, 2015 examination. He opined that appellant had two percent upper
extremity permanent impairment based on carpal tunnel syndrome, with no impairment based on
The Guides Newsletter. In applying The Guides Newsletter, Dr. Rojas assigned zeros for all
diagnosis classes and grade modifiers.
By report dated October 27, 2015, Dr. Magliato found the second opinion physician’s
report was confusing and of “no value.” He indicated that Dr. Rojas had provided vague
calculations that were difficult to understand, and he noted that carpal tunnel syndrome was not
an accepted condition. Dr. Magliato recommended referral to another second opinion physician.

2

In a memorandum of telephone call (CA-110) dated November 24, 2015, OWCP advised
appellant that he would soon be receiving a letter for a second opinion appointment.
The record contains a letter dated November 24, 2015 from the second opinion referral
service (Medical Consultants Network), advising OWCP that Dr. Rojas was the only orthopedic
surgeon on panel who performed federal workers’ compensation examinations. OWCP sent a
letter dated November 25, 2015 to Dr. Hernández Ortiz, requesting an additional report regarding
permanent impairment. It referred to The Guides Newsletter and noted that whole person
impairments were not appropriate under FECA.
In a report dated December 12, 2015, Dr. Hernández Ortiz reported that he had already
answered OWCP’s questions in his July 11, 2015 report. OWCP referred the evidence to
another OWCP medical adviser, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, for
review.
In a report dated January 8, 2016, Dr. Harris opined that appellant had one percent
permanent impairment to each upper and lower extremity. He indicated that for the upper
extremities, there was one percent permanent impairment for C6 nerve root “mild pain/impaired
sensation.” In discussing this impairment, Dr. Harris referred to the May 3, 2015 report from
Dr. Hernández Ortiz, and he indicated that Dr. Hernández Ortiz had improperly used the
diagnosis-based grids for the spine. As to the lower extremities, he found there was one percent
impairment for L5 mild pain/impaired sensation. Dr. Harris reported that there was no
impairment for C8 and T1 radiculopathy, as the attending physician did not identify any
neurological deficit consistent with radiculopathy. He indicated that electrodiagnostic studies
were consistent with C6 and L5 radiculopathy.
By decision dated January 19, 2016, OWCP issued a schedule award for one percent
permanent impairment of each upper and lower extremity. The period of the award was 12.00
weeks from April 28, 2015.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has

2

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

3

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009) is to be applied.5
ANALYSIS
OWCP issued a schedule award for one percent permanent impairment to each upper and
lower extremity, based on the January 8, 2016 report from Dr. Harris, an OWCP medical adviser.
Dr. Harris based his opinion on the April 28, 2015 examination results of the attending
physician, Dr. Hernández Ortiz, and his reports dated May 3 and July 11, 2015. The Board notes
that OWCP had referred appellant for a second opinion examination by Dr. Rojas. The
September 22, 2015 report from Dr. Rojas found no permanent impairment. As noted by an
OWCP medical adviser, Dr. Magliato, the September 22, 2105 report provided little explanation
or rationale regarding the conclusions provided. The record indicates OWCP considered
referring appellant for another second opinion, but was advised that there were no other
appropriate physicians in appellant’s area.
The attending physician, Dr. Hernández Ortiz, provided reports with results of an
April 28, 2015 examination. He reviewed those results and provided an opinion under The
Guides Newsletter with respect to a permanent impairment to the upper and lower extremities in
his July 11, 2015 report. As to the upper extremities, Dr. Hernández Ortiz opined that there was
six percent permanent impairment based on the C6 nerve root: one percent for sensory deficit
and five percent for motor deficit. Under The Guides Newsletter, a grade C impairment for C6
mild sensory deficit is two percent, and mild motor deficit is nine percent. Dr. Hernández Ortiz
noted that OWCP had only accepted a right C6 radiculopathy, but he felt it was a bilateral
condition.
Dr. Hernández Ortiz then found 12 percent permanent impairment for what he described
as bilateral C8-T1 nerve lesion. It is unclear how this impairment was calculated, as he made no
reference to Table 1 of The Guides Newsletter. If Dr. Hernández Ortiz was using sensory and
motor deficits for the C8 and T1 nerve roots, he does not explain how the table was applied.
Moreover, as Dr. Harris explained, an impairment based on the C8-T1 nerves was not well
documented by examination or diagnostic studies. He noted the April 13, 2014 electrodiagnostic
study indicated C6 radiculopathy. The Board finds the weight of the evidence with respect to C8
and T1 nerve root permanent impairment rests with the medical adviser.

3

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

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
5

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

4

The January 8, 2016 report from Dr. Harris, does not, however, resolve the issue of
permanent impairment to the upper and lower extremities. Dr. Harris finds that the evidence
establishes only one percent permanent impairment to each extremity, based on sensory deficit
from C6 (upper extremity) and L5 (lower extremity). He does not explain why a motor deficit
under The Guides Newsletter was not appropriate for C6 or L5 nerve roots in this case. The
comments from Dr. Harris regarding his opinion refer to the May 3, 2015 report from
Dr. Hernández Ortiz and tables regarding spinal impairments. Dr. Hernández Ortiz applied The
Guides Newsletter in his July 11, 2015 report. If Dr. Harris found that motor deficits for C6 and
L5 were not properly documented under the provisions of the A.M.A., Guides,6 he should have
provided medical rationale to support the opinion. Under OWCP procedures, if an OWCP
medical adviser neglects to provide rationale for the permanent impairment specified, the claims
examiner should request clarification from the medical adviser.7
The case will be remanded to OWCP for further development. Upon remand an OWCP
medical adviser should properly evaluate the findings of Dr. Hernández Ortiz and his opinion
under The Guides Newsletter in his July 11, 2015 report. After such further development as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development.

6

Motor deficits for the upper extremities are discussed in section 15.4a, and the severity of any deficit determined
under Table 15-14, A.M.A., Guides 425. For the lower extremities, section 16.4a and Table 16-11 refer to motor
deficits and their severity. A.M.A., Guides 533.
7

Supra note 4 at Chapter 2.808.6(f)(2) (February 2013). See also C.K., Docket No. 09-2371 (issued August 18,
2010); Frantz Ghassan, 57 ECAB 349 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: January 4, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, HOUSTON
PERFORMANCE CLUSTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 09-1397
Issued: February 3, 2010

Case Submitted on the Record

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

JURISDICTION
On May 6, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 26, 2009 decision denying her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury causally related to factors of her federal employment.
FACTUAL HISTORY
On January 15, 2009 appellant, then a 57-year-old mail handler, filed an occupational
disease claim alleging that on January 13, 2009 her right foot collapsed after working on a
concrete floor eight hours a day five days a week. She stated that the employing establishment
put her in a wheelchair and took her to her car, but did not provide any medical care. Appellant
had broken her left foot on March 14, 2008 and that her right foot had to carry her weight for
over nine months. She stopped work on January 13, 2009 and returned to work on February 2,

2009 with restrictions. Appellant submitted the return to work notes dated January 14 and 29,
2009 from Dr. W. Eric Pack, a podiatrist.
In a February 18, 2009 letter, the Office informed appellant that the evidence submitted
was insufficient to establish her claim. It advised her to submit details regarding the employment
duties or exposure she believed caused or contributed to her claimed condition and a
comprehensive medical report from a treating physician, which contained symptoms, a diagnosis
and an opinion with an explanation as to the cause of her diagnosed condition.
In a January 14, 2009 report, Dr. Pack noted positive pain elicited upon palpation of
peroneal tendon sheath. An assessment of right ankle peroneal tendinitis was provided.
Dr. Pack indicated that appellant was to be scheduled for a magnetic resonance imaging (MRI)
scan to evaluate any soft tissue, ligamentous or bony damage. A January 23, 2009 MRI scan
report indicated a small right ankle joint effusion and mild patchy bone marrow edema within the
right cuboid. In a January 29, 2009 report, Dr. Pack stated that MRI scan findings were
consistent with minimal bone marrow edema of the right cuboid. An assessment of bone marrow
edema with arthralgia and capsulitis, right cuboid was provided. In a February 13, 2009 report,
Dr. Pack noted that appellant experienced severe pain and spasm at work on her right foot. In a
March 10, 2009 report, he noted positive pain elicited upon palpation of posterolateral right
ankle and reiterated the diagnosis of arthralgia capsulitis and peroneal tendinitis. Copies of
physical therapy reports were also provided.
By decision dated March 26, 2009, the Office denied appellant’s claim finding that the
evidence was insufficient to establish that she sustained a right foot condition in the performance
of duty.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4

1

The record contains additional evidence after the Office’s March 26, 2009 decision and appellant submitted new
evidence with her appeal. However, the Board may not consider evidence that was not before the Office at the time
it rendered its final decision and has no jurisdiction to review new evidence on appeal. 20 C.F.R. § 501.2(c).
Appellant can submit this evidence to the Office and request reconsideration under 5 U.S.C. § 8128.
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). When an employee
claims that he or she sustained injury in the performance of duty the employee must submit sufficient evidence to
establish that he or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. The employee must also establish that such event, incident or exposure caused an injury. See also
5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (occupational disease or illness and
traumatic injury defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

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 the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to the claimant’s diagnosed
condition. To be of probative value, 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
An award of compensation may not be based on appellant’s belief of causal relationship.
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 a causal relationship.7
ANALYSIS
It is not disputed that appellant worked on a concrete floor daily as part of her duties as a
mail handler. The Office denied her claim finding that the medical evidence did not establish
that she sustained a right foot condition as a result of her work activities.
Dr. Pack provided multiple reports concerning appellant’s right ankle. He diagnosed
peroneal tendinitis, bone marrow edema with arthralgia and capsulitis of right cuboid and
arthralgia capsulitis. However, Dr. Pack failed to provide any opinion explaining how such
medical conditions were caused or contributed to by appellant’s federal employment. 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 Dr. Pack’s reports are insufficient to
establish that appellant’s right foot condition is causally related to her duties as a mail handler.
The January 23, 2009 MRI scan report found right ankle joint effusion and mild patchy
bone marrow edema within the right cuboid. The study did not, however, provide any opinion
regarding the cause of the diagnosed condition. It is of limited probative value on the issue of
causal relationship.9 Appellant also submitted physical therapy records; however, a physical
therapist is not a physician as defined under the Act.10 The opinions of such health care
5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

8

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

9

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

10

See 5 U.S.C. § 8101(2).

3

professionals are not considered competent medical evidence for purposes of determining
disability or entitlement to benefits.11
Appellant was notified by Office letter dated February 18, 2009 that she was required to
provide medical evidence containing a diagnosis and a physician’s opinion regarding the cause
of her injury. She failed to submit sufficient medical evidence supporting that her federal duties
caused a right foot condition. Appellant has not established that she sustained an injury in the
performance of duty.
On appeal, appellant contended that her supervisors slammed her wheelchair into the
turntable doors as they were wheeling her out of the building and broke her right foot. To the
extent that she is alleging a new traumatic injury, this aspect of her claim was not adjudicated by
the Office. As noted, the record before the Office at the time of its March 26, 2009 decision
contains insufficient medical evidence to establish that appellant’s daily duties caused her right
foot condition.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dayton, OH,
Employer
__________________________________________

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

Docket No. 09-854
Issued: October 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 11, 2009 appellant filed a timely appeal from a June 2, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for a traumatic injury on
April 12, 2008 and a November 14, 2008 decision denying her request for reconsideration.
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 sustained a left hip and groin injury on April 12,
2008 while in the performance of duty; and (2) whether the Office abused its discretion in
denying her request for reconsideration.
FACTUAL HISTORY
On April 14, 2008 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim alleging that at approximately 2:00 a.m. on April 12, 2008 she felt sharp pains in her left

hip and groin while sweeping out a flat sorting machine. Susan Shaner, a superviser, stated that,
at approximately 3:30 a.m., appellant requested transportation to the emergency room because of
left leg pain. Appellant indicated that she felt fine upon arrival at work but later felt a sharp pain
in her groin which radiated into her upper left leg and left hip. Ms. Shaner instructed her to go to
the break room to wait for the paramedics. Appellant appeared to walk normally and without
pain. When the paramedics arrived, she appeared to walk normally as she left with them. Linda
Peters, another supervisor, observed that appellant did not appear to be in pain when she left with
the paramedics. An emergency room discharge form dated April 11, 2008 contained a diagnosis
of left hip strain with no history provided.
By letter dated April 28, 2008, the Office asked appellant to submit additional factual
evidence establishing that the claimed incident on April 12, 2008 occurred as alleged and
medical evidence establishing causal relationship between the work incident and a diagnosed
medical condition.
In a May 14, 2008 report, Dr. Pietro Seni, a Board-certified orthopedic surgeon, stated
that appellant had pain in her left hip and groin radiating to her thigh. The groin pain began two
weeks earlier at work while she was sweeping a machine and the task required a twisting
movement getting the mail tubs, pulling them off the conveyor belt and loading them into other
equipment. The weight of the tubs varied between 2 and 50 pounds. Appellant reported that she
pulled a groin muscle in February. She indicated that she had a previous diagnosis of hip
osteoarthritis. Findings on physical examination included negative straight leg raising, almost
full range of motion of the hip and tenderness over the greater trochanter area of the hip. An
x-ray of the pelvis revealed degenerative arthritic changes, particularly in the left hip. Dr. Seni
gave appellant an injection in the greater trochanter bursa. He indicated that the injection should
relieve much of her pain if the cause was trochanteric bursitis. Dr. Seni indicated that further
tests would be required for a diagnosis if trochanteric bursitis was not the cause of appellant’s
pain.
By decision dated June 2, 2008, the Office denied appellant’s claim on the grounds that
the evidence did not establish that she sustained a left hip and groin injury on April 12, 2008
causally related to factors of her employment.
In a June 4, 2008 report, Dr. Seni indicated that the trochanteric bursa injection had
provided minimal left hip pain relief. On physical examination, appellant had limited painful
range of motion of the hip and trochanter pain. Dr. Seni gave her another hip injection and stated
that, if she did not experience substantial relief, she might need a total joint replacement. On
June 25, 2008 he reported that the June 4, 2008 left hip injection provided minimal relief from
her groin pain. Appellant provided x-rays from her primary care physician who had diagnosed
mild osteoarthritis of both hips. Dr. Seni noted that the x-rays revealed some arthritic changes of
both hips. He recommended further testing, including a bone scan and possible magnetic
resonance imaging (MRI) scan.
On October 20, 2008 appellant requested reconsideration. She stated that Dr. Seni did
not have a complete history when he examined her. Appellant indicated that the diagnosis of
mild hip arthritis was not made until she had worked at the employing establishment for one
year. She asserted that her job, which included eight hours of walking, twisting and turning

2

while lifting heavy tubs of mail and pushing and pulling heavy equipment, aggravated her
underlying osteoarthritis.
By decision dated November 14, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was not sufficient to warrant further merit
review.1
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.5

1

Subsequent to the November 14, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

3

ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained a left
hip and groin injury on April 12, 2008 while in the performance of duty.
Appellant alleged that she sustained a work-related injury on April 12, 2008 when she
felt sharp pains in her left hip and groin while sweeping out a flat sorting machine. An
emergency room discharge form contained a diagnosis of left hip strain with no history provided.
On May 14, 2008 Dr. Seni stated that appellant had pain in her left hip and groin that
began two weeks earlier while she was sweeping a mail sorting machine. This task required a
twisting movement getting the mail tubs, pulling them off the conveyor belt and into other
equipment. Appellant reported that she pulled a groin muscle in February. Dr. Seni provided
findings on physical examination included negative straight leg raising, almost full range of
motion of the hip and tenderness over the greater trochanter area of the hip. An x-ray of the
pelvis revealed degenerative arthritic changes, particularly in the left hip. Dr. Seni gave
appellant an injection in the greater trochanter bursa and indicated that further tests would be
required for a diagnosis if trochanteric bursitis was not the cause of appellant’s pain. He did not
provide a medical opinion as to the cause of appellant’s left hip and groin pain. Dr. Seni made a
tentative diagnosis of trochanteric bursitis. He did not provide a final diagnosis or explain how
appellant’s left hip and groin pain were caused or aggravated by her job duties on April 12, 2008
or any other employment factor. Lacking a specific diagnosis and medical rationale explaining
causal relationship, Dr. Seni’s report is not sufficient to establish that appellant sustained a workrelated injury on April 12, 2008.
The Office advised appellant of the medical evidence needed to establish that her hip
condition was causally related to her employment. Appellant did not provide such medical
evidence. There is no medical evidence of record containing a complete and accurate factual and
medical background, physical findings on examination and medical rationale explaining how
appellant’s left hip and groin conditions were causally related to the April 12, 2008 incident at
work or other factors of her employment. Therefore, the Office properly denied her claim.
On appeal, appellant asserts that the diagnosis of hip arthritis was not made until she had
worked at the employing establishment for one year. She asserted that her job, which included
eight hours of walking, twisting and turning while lifting heavy tubs of mail and pushing and
pulling heavy equipment, aggravated her underlying osteoarthritis. However, there is no medical
evidence establishing that appellant’s hip osteoarthritis was aggravated by her employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act6 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against

6

5 U.S.C. §§ 8101-8193.

4

compensation.7 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).8
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
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.10 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.11 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.12
ANALYSIS -- ISSUE 2
In her request for reconsideration, appellant alleged that her underlying hip osteoarthritis
was aggravated by her physical job requirements performed during her one-year employment. In
a June 4, 2008 report, Dr. Seni indicated that he gave appellant another hip injection and opined
that, if she did not experience substantial relief, she might need a total joint replacement. On
June 25, 2008 Dr. Seni reviewed x-rays which revealed arthritic changes of both hips. He
recommended further testing, including a bone scan and possible MRI scan. Dr. Seni did not
provide a rationalized medical opinion addressing the issue of causal relationship. The June 2,
2008 decision denied appellant’s claim because she failed to provide medical evidence
establishing causal relationship. Because appellant did not submit evidence or argument that
showed that the Office erroneously applied or interpreted a specific point of law, advanced a
relevant legal argument not previously considered or constituted relevant and pertinent new
evidence not previously considered by the Office, it properly denied his request for
reconsideration.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury on April 12,
2008 while in the performance of duty. The Board further finds that the Office did not abuse its
discretion in denying appellant’s request for reconsideration.

7

5 U.S.C. § 8128(a).

8

Annette Louise, 54 ECAB 783, 789-90 (2003).

9

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 14 and June 2, 2008 are affirmed.
Issued: October 19, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER, NAVY INSTALLATIONS
COMMAND, San Diego, CA, Employer
__________________________________________

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

Docket No. 21-0310
Issued: August 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 30, 2020 appellant filed a timely appeal from a December 3, 2020 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that a traumatic
injury occurred in the performance of duty on July 23, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On August 6, 2020 appellant, then a 64-year-old aircraft freight loader, filed a traumatic
injury claim (Form CA-1) alleging that on July 23, 2020 he injured his right knee when he struck
his right knee on a computer stand while in the performance of duty. On the reverse side of the
claim form, the employing establishment acknowledged that he was in the performance of duty
when his injury occurred. Appellant stopped work on July 23, 2020 and returned to work on
July 27, 2020.
In a September 9, 2020 medical report, Dr. Arthur Wardell, a Board-certified orthopedic
surgeon, evaluated appellant for a right knee injury that occurred at work on July 27, 2020 when
appellant struck his knee on a computer console. He noted that appellant received a steroid
injection on August 5, 2020 to treat the pain in his knee. Dr. Wardell also observed that appellant
had preexisting asymptomatic osteoarthritis. On evaluation, he diagnosed a contusion of the right
knee that aggravated appellant’s preexisting asymptomatic osteoarthritis. Dr. Wardell ordered an
x-ray scan of appellant’s right knee and recommended that appellant undergo a course of physical
therapy.
In a September 9, 2020 duty status report (Form CA-17), Dr. Wardell diagnosed a right
knee contusion, aggravating his asymptomatic osteoarthritis. He released appellant to return to
work as of July 29, 2020 with work restrictions. In an attending physician’s report (Form CA-20)
of even date Dr. Wardell diagnosed a right knee contusion aggravating his asymptomatic
osteoarthritis in relation to a July 27, 2020 employment injury where appellant bumped his knee
on a computer console. He checked a box marked “Yes” to indicate his opinion that appellant’s
condition was caused or aggravated by his employment activity.
In an October 7, 2020 medical report, Dr. Wardell reevaluated appellant’s right knee and
noted that appellant experienced a constant, aching pain. He diagnosed a contusion of the right
knee aggravating his asymptomatic osteoarthritis and recommended that appellant continue his
physical therapy treatment. In a Form CA-17 of even date, Dr. Wardell reiterated his diagnosis
and recommended work restrictions. In an October 7, 2020 Form CA-20, he again reiterated his
diagnosis and found that it was due to a July 27, 2020 employment injury where appellant bumped
his right knee on a computer console. Dr. Wardell also checked a box marked “Yes” to indicate
his opinion that appellant’s condition was caused or aggravated by appellant’s employment
activity.
Appellant submitted physical therapy reports dated October 5 to 21, 2020 detailing
treatment for his right knee condition.
In a development letter dated October 29, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30
days to respond.
On October 21, 2020 appellant accepted a limited-duty assignment from the employing
establishment.

2

Appellant submitted additional physical therapy notes dated October 27 to 29, 2020.
In a November 2, 2020 medical report, Dr. Wardell reiterated his diagnosis of a contusion
of the right knee aggravating appellant’s preexisting asymptomatic osteoarthritis and
recommended that appellant continue his physical therapy treatment.
In a November 2, 2020 Form CA-17, Dr. Wardell again diagnosed a right knee contusion
aggravating his asymptomatic osteoarthritis and recommended work restrictions. In a Form CA20 of even date, he note his diagnosis was due to a July 27, 2020 employment injury and further
checked a box marked “Yes” to indicate his opinion that appellant’s condition was caused or
aggravated by his employment activity.
Appellant submitted additional physical therapy notes dated November 2 to 5, 2020.
In a November 17, 2020 response to OWCP’s development questionnaire, appellant
explained that on July 23, 2020 he was carrying a box weighing approximately 30 pounds when
he lost his footing on a wooden pallet, lunged forward and hit his right knee on the edge of a
computer console outside of his office. He detailed his subsequent medical treatment and indicated
that he did not sustain any other injury between the date of his injury and the date he reported his
injury. Appellant insisted that he did not have any similar disability or symptoms prior to the
July 23, 2020 employment incident.
Appellant attached a July 24, 2020 medical report in which he informed John Riffle, a
physician assistant, that his right knee injury was not caused by a direct blow, crushing injury,
puncture wound, twisting injury, or an incised wound. He also indicated that his injury occurred
at home, reasoning that he had been walking a lot at home recently. Dr. Andrew Sellers, a Boardcertified diagnostic radiologist, performed an x-ray scan of appellant’s right knee that revealed
moderate-to-severe tri-compartmental osteoarthritis and no acute fracture. Mr. Riffle diagnosed
tri-compartmental osteoarthritis of the right knee.
In an August 5, 2020 medical report, Dr. Kevin Pinkos, a Board-certified orthopedic
surgeon, evaluated appellant as a result of severe osteoarthritis in both of his knees. He noted that
appellant had been previously seen in March 2019 to undergo treatment for his left knee
symptoms, which resulted in great relief. Appellant presented seeking similar treatment for his
right knee. Dr. Pinkos diagnosed bilateral primary osteoarthritis of the knees and administered a
corticosteroid injection to the left knee. He prescribed pain medication and discussed surgical
options.
In a November 11, 2020 medical note, Dr. Wardell indicated that he first evaluated
appellant for his right knee pain in relation to the alleged July 23, 2020 employment incident on
September 9, 2020. He diagnosed a right knee contusion, aggravating a preexisting asymptomatic
osteoarthritis and attached copies of his medical records previously received in the case record.
By decision dated December 3, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as he described. It noted that the mechanism of injury alleged in the July 23, 2020
employment incident differed from the accounts of Dr. Pinkos and Mr. Riffle. OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
3

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 timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.8 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.11 An employee’s

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

4

statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that a traumatic
injury occurred in the performance of duty on July 23, 2020, as alleged.
Appellant has not established the factual component of his claim as he has insufficiently
explained how and where the claimed injury occurred.13 In his August 6, 2020 Form CA-1, he
indicated that he injured his right knee on July 23, 2020 when he struck it into a computer stand.
In his November 17, 2020 response to OWCP’s development questionnaire, appellant explained
that he was carrying a box weighing approximately 30 pounds when he lost his footing, lunged
forward and struck his right knee on the edge of a computer unit outside of his office. However,
in a July 24, 2020 medical report, appellant informed Mr. Riffle that his right knee injury was not
caused by a direct blow, crushing injury, puncture wound, twisting injury, or an incised wound.
He asserted that his injury occurred at home due to increased walking. In an August 5, 2020
medical report, Dr. Pinkos noted the purpose of the encounter was due to severe osteoarthritis in
both of his knees. He noted that appellant had been previously seen in March 2019 to undergo
treatment for his left knee symptoms. There was no mention of a traumatic injury.
The Board also notes inconsistencies in appellant’s response to OWCP’s development
questionnaire and his description of the alleged July 23, 2020 employment incident. In his
November 17, 2020 response to OWCP’s development questionnaire, appellant asserted that he
had no similar disabilities concerning his right knee. However, the medical evidence of record
from Drs. Pinkos and Wardell clearly indicate that appellant was diagnosed with right knee
osteoarthritis prior to the events of the alleged July 23, 2020 employment incident.
The Board finds that appellant’s description of the incident in his Form CA-1 is
inconsistent with his statements to his treating physicians. Appellant’s varying description of the
circumstances of his right knee injury do not establish a singular account of the mechanism of
injury.14 Further, the history-of-injury he related failed to mention his history of osteoarthritis in
his right knee. As appellant has not provided a consistent description of the alleged employment
incident and the mechanism by which he sustained an injury, the Board finds that he has not met
his burden of proof.15
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.

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

13

Supra note 10.

14

Id.

15

H.D., Docket No. 15-1698 (issued May 4, 2016).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that a traumatic
injury occurred in the performance of duty on July 23, 2020, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
PEACE CORPS, VOLUNTEER SERVICES,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-383
Issued: May 28, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant filed a timely appeal from a September 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease in the performance of duty.
On appeal, appellant contends that the evidence he submitted is sufficient to establish a
paracentral annular fissure at L5-S1 as a direct result of his volunteer service in the Ukraine from
sleeping on bad beds, long train rides and work-related travel with heavy backpacks and luggage.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2013 appellant, then a 27-year-old former Peace Corps volunteer, filed a Form
CA-2 an occupational disease while he served in the Ukraine. In a narrative statement, appellant
related that he first noticed his back pain in April 2010 during his preservice training. He slept
on a very uncomfortable and uneven couch as suggested by his host family. Later, appellant
moved to a bed, but the lack of back support did not help. He traveled frequently and carried
around luggage and backpacks, which further aggravated his back condition. Appellant’s tour of
duty lasted from March 29, 2010 to June 27, 2012.
In a Peace Corps medical evaluation report dated March 29, 2012 appellant described
slight back pain with stiffness in the morning. An unidentifiable physician stated that appellant’s
back pain was caused by the use of an uncomfortable bed and stretching in the morning relieved
the pain. On June 26, 2012 an unidentifiable physician stated that appellant was still having back
pain but it was better than in March 2012.
In a July 12, 2013 letter, OWCP notified appellant of the deficiencies of his claim. It
afforded him 30 days to respond to its inquiries and to submit additional evidence.
Appellant submitted a July 19, 2013 narrative statement, reiterating that during his
volunteer service in Ukraine he slept on cots that rested on spring-supported frames that dipped
like a hammock and had back discomfort every single morning he woke up. He stated that he
would do a specific stretch and would have to crack his back in a certain way for the pain to
dissipate, but when he sat upright in a chair there would be some back discomfort.
In a February 28, 2013 report, Dr. Eun A. Kim, a Board-certified family practitioner,
obtained a history that appellant was in Ukraine for the Peace Corps and believed his back pain
was from sleeping in bad beds. Dr. Kim diagnosed back, right shoulder and right elbow pain
with psoriasis.
An x-ray of the lumbosacral spine dated February 28, 2013 revealed indistinctness of the
mid aspect of the articular process of L5. Dr. Mithilesh Singh, a Board-certified radiologist,
stated that the “[f]inding may represent spondylosis. It is, however, not definitely noted on the
oblique views.”
A March 7, 2013 magnetic resonance imaging (MRI) scan obtained by Dr. Myung-Soo
Lee, a radiologist, revealed a left paracentral annular fissure at L5-S1. The MRI scan was
otherwise unremarkable of the lumbar spine.
By decision dated September 27, 2013, OWCP denied appellant’s claim. It found that
the work exposures occurred as alleged but that the medical evidence was insufficient to
establish his lumbar condition was caused by his Peace Corp volunteer service.
LEGAL PRECEDENT
FECA provides that an injury or illness sustained by a Peace Corps volunteer when he or
she is outside the United States shall be presumed to have been sustained while in the
performance of duty and proximately caused by federal employment. This presumption may be
2

rebutted by evidence demonstrating that the injury or illness: (1) was caused by the volunteer’s
willful misconduct or intent to bring about injury to self or another; (2) was proximately caused
by the volunteer’s intoxication by alcohol or illegal drugs; (3) preexisted the period of service
abroad; or (4) manifested symptoms of, or consequent to, a preexisting congenital defect or
abnormality.2 If the presumption is rebutted by evidence showing that the injury or illness
preexisted the period of service abroad or manifested symptoms of, or consequent to, a
preexisting congenital defect or abnormality, the volunteer may still prove his or her claim and
be entitled to compensation if he or she submits substantial, probative and rationalized evidence
establishing that the injury or illness was proximately caused or materially aggravated,
accelerated or precipitated by factors or conditions of Peace Corps service.3
While Peace Corps volunteers are normally entitled to the presumption that an injury or
illness sustained while abroad is proximately related to federal employment, the presumption
will not arise if no injury or illness is diagnosed. Without a firm medical diagnosis, it is not
possible to ascertain whether the condition was preexisting or congenital.4
ANALYSIS
Appellant was a Peace Corps volunteer in Ukraine from March 29, 2010 to
June 27, 2012. He filed an occupational disease claim for a low back condition sustained while
abroad. The presumption arises that appellant, as a Peace Corps volunteer, sustained an
employment-related injury while in the performance of duty. As noted above, this presumption
is rebuttable.5 The case record does not establish that appellant’s condition preexisted his period
of service abroad, was a preexisting congenital defect or the result of his willful misconduct,
intent to bring about injury to himself or another or intoxication by alcohol or illegal drugs. To
establish his claim, appellant must submit substantial medical evidence proving that his back
condition was proximately caused or materially aggravated, accelerated or precipitated by work
factors.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7 The Board finds that the medical
evidence does not sufficiently establish that factors of appellant’s Peace Corps service caused or
contributed to his back condition. In a February 28, 2013 report, Dr. Kim merely diagnosed back
pain and indicated that appellant believed that it arose from sleeping in bad beds during his Peace
2

5 U.S.C. § 8142(c)(3); 20 C.F.R. § 10.730(a).

3

20 C.F.R. § 10.730(b)-(c).

4

See S.S., 59 ECAB 152 (2007).

5

See supra note 2.

6

See Charles S. Hamilton, 52 ECAB 110, 114-15 (2000); A.W., Docket No. 13-648 (issued June 4, 2013).

7

See I.J., 59 ECAB 408 (2008).

3

Corps service in Ukraine. He did not provide a firm diagnosis or a rationalized opinion
explaining how factors of appellant’s Peace Corps service, such as sleeping on bad beds,
frequent travel and carrying backpacks and luggage, caused or aggravated his back pain.
Dr. Kim noted that appellant’s condition possibly occurred while he was in Ukraine, but such
generalized statements are speculative and do not establish causal relationship. They merely
repeat appellant’s allegations and are unsupported by adequate medical rationale explaining how
his physical activity at work actually caused or aggravated the diagnosed conditions.8 The Board
finds that the report from Dr. Kim is insufficient to establish that appellant sustained an
employment-related injury.
In Peace Corps medical evaluation reports dated March 29 and June 26, 2012 from an
unidentifiable physician noted that appellant’s back pain was caused by the use of an
uncomfortable bed. These forms, lacking proper identification, cannot be considered as
probative evidence. A medical report may not be considered as probative medical evidence if
there is no indication that the person completing the report qualifies as a physician as defined in
FECA.9 Therefore, appellant did not meet his burden of proof with these submissions.
Dr. Singh’s February 28, 2013 x-ray and Dr. Lee’s March 7, 2013 MRI scan, offered
limited probative value on the issue of causal relationship. Neither of the diagnostic reports
addressed whether appellant’s service in the Peace Corps caused or contributed to his back
condition.10 In the absence of rationalized medical opinion evidence, appellant failed to meet his
burden of proof.
On appeal, appellant contends that the evidence he submitted is sufficient to establish that
he sustained a paracentral annular fissure at L5-S1 a direct result of his volunteer service in
Ukraine from sleeping on bad beds, long train rides and work-related travel with heavy
backpacks and luggage. The Board has held that the mere fact that appellant’s symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish a causal relationship between his condition and his employment factors.11 The
Board finds that the medical evidence of record is insufficient to establish that appellant’s Peace
Corps service caused or contributed to his low back condition.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease while in the performance of duty.

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See Merton J. Sills, 39 ECAB 572 (1988). See also Bradford L. Sutherland, 33 ECAB 1568 (1982).

10

See J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 28, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milford, CT, Employer
__________________________________________

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Appearances:
Benjamin Zimmermann, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1811
Issued: March 23, 2018

Case Submitted on the Record

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

JURISDICTION
On August 18, 2017 appellant, through counsel, filed a timely appeal from a March 10,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant, through counsel, filed a timely request for oral argument before the Board. After exercising its
discretion the Board, by order dated February 1, 2018, denied his request finding that his arguments could be
adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument,
Docket No. 17-1811 (issued February 1, 2018).

ISSUE
The issue is whether appellant met his burden of proof to establish that his bilateral hip,
knee, and ankle osteoarthritis conditions were causally related to the accepted factors of his federal
employment.
FACTUAL HISTORY
On September 29, 2014 appellant, then a 65-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that, on June 20, 2014, he first became aware of the
relationship between his employment and the aggravation of his preexisting bilateral hip, knees,
and ankle osteoarthritis. He stopped work on August 8, 2014 and retired from the employing
establishment, effective November 30, 2014.
By development letter dated October 31, 2014, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him regarding the medical
and factual evidence required and afforded 30 days to provide this information.
In response to OWCP’s development letter, appellant submitted additional medical
evidence.
In reports dated May 2, 2013, and February 17 and April 4, 2014, Dr. Amit Lama, a
treating Board-certified orthopedic surgeon, diagnosed lower leg pain joint, lower leg
osteoarthrosis, and unspecified knee internal derangement. He reported that appellant had
undergone a total right knee arthroplasty on September 28, 2008. Dr. Lahav noted that appellant
complained of continued bilateral lower extremity discomfort. A physical examination revealed
mild left knee swelling, no effusion, tenderness along medial joint line, and no hip pain with
motion. Dr. Lahav reviewed x-ray interpretations which showed left knee patellofemoral
compartment degenerative changes, left knee moderate narrowing of the medial compartment, and
well-healed contralateral total right knee arthroplasty. Diagnoses included left knee arthralgia, left
knee medial compartment arthritis degeneration, and status post right total knee arthroplasty.
Dr. Lahav opined that appellant’s letter carrier duties aggravated his lower extremity joints.
A March 11, 2014 magnetic resonance imaging (MRI) scan revealed severe left knee
osteoarthritis with a posterior horn tear.
In reports dated April 28 and May 4, 2014, Philip Hujdic, a certified physician assistant,
provided physical findings and performed an ultrasound of the left knee. He diagnosed left lower
leg joint pain, left lower leg osteoarthritis, and left knee internal derangement.
Dr. Lahav, in an August 20, 2014 report, detailed this history of appellant’s medical
treatment from 2006 and noted in general terms the physical requirements of appellant’s duties as
a letter carrier. He related diagnoses of right knee arthritis, status post total right knee arthroplasty,
bilateral hip arthritis, bilateral ankle arthritis/degeneration, and left knee arthritis/degeneration and
arthralgia. Dr. Lahav related that appellant’s examination findings were unchanged from prior
reports. He described what the term arthritis entailed and contributing factors for this condition.
Dr. Lahav opined that appellant’s employment duties, which required constant and repetitive

2

walking, stooping, climbing, squatting, bending stair climbing, twisting, lifting, and carrying,
caused stress, which in turn caused chronic inflammation which accelerated the loss of degradative
cartilage.
On January 23, 2015 OWCP referred appellant’s claim, and a statement of accepted facts
(SOAF) to a district medical adviser (DMA) for an opinion as to whether his job duties aggravated
his preexisting bilateral knee, hip, and ankle conditions. It provided the DMA a definition of
aggravation on February 3, 2015) On March 1, 2015 the DMA, based upon a review of the medical
evidence and SOAF, concluded that appellant’s federal employment did not cause any aggravation
of the preexisting bilateral hip, knee, and ankle conditions.
By decision dated March 26, 2015, OWCP denied appellant’s claim as it found that the
evidence of record failed to establish that the diagnosed conditions were caused or aggravated by
the accepted factors of his federal employment.
In a letter dated April 21, 2015, counsel requested an oral hearing before an OWCP hearing
representative, which was subsequently converted to a review of the written record.
In a November 23, 2015 report, Dr. Lahav again summarized appellant’s medical history.
In support of his opinion that appellant’s work duties aggravated his preexisting bilateral knee and
hip conditions, he noted the increasing intensity of appellant’s complaints with his employment
weight bearing activities. Dr. Lahav reported appellant’s decreased range of motion from a
March 13, 2009 examination to a February 13, 2014 examination, which he opined established
causal relationship between appellant’s left knee and his stressful letter carrier activity. Next, he
reported a worsening of appellant’s bilateral hips and bilateral ankles based on comparison of xray interpretations taken in 2006 and 2008 with an August 20, 2014 MRI scan and x-ray
interpretation. Dr. Lahav explained that the activities appellant performed as a letter carrier would
have aggravated his preexisting lower extremity joint arthritis, which he stated was supported by
medical research and well accepted by the medical community. Thus, he opined that there was a
direct causal relationship between appellant’s worsening arthritic conditions and his federal job
duties.
By decision dated February 8, 2016, OWCP’s hearing representative affirmed the denial
of appellant’s claim. He noted that he only considered whether work factors from June 12, 2013
to November 30, 2014 aggravated appellant’s lower extremity arthritic conditions as OWCP had
previously denied a claim, which was filed on June 12, 2013, regarding the same allegation, which
OWCP denied by decision dated September 17, 2013.
In a December 31, 2016 report, Dr. Lahav diagnosed bilateral hip degenerative joint
disease and bilateral lower leg osteoarthritis. He indicated the reason for his report was to address
the issue of causal relationship between appellant’s diagnosed conditions and his federal
employment. Dr. Lahav explained that, once the arthritic process commences, the process
becomes increasingly rapid with aggravating types of activities. Specifically, the continuous load
activities performed by appellant during his 19 years working for the employing establishment,
including the months prior to his retirement, increased the stress on his bilateral lower extremity
joints which in turn led to the continued articular cartilage degenerative process an result arthritic
joint deterioration. Dr. Lahav noted that the progression of appellant’s deterioration was supported

3

by x-ray interpretations. He noted that, if appellant’s job had been sedentary, the bilateral lower
extremity arthritis would not have advanced to its current state.
By decision dated January 17, 2017 appellant, through counsel, requested reconsideration.
By decision dated March 10, 2017, OWCP denied modification. In this decision it found
that Dr. Lahav’s reports were insufficient to establish appellant’s claim as he did not address the
natural course of his underlying condition and how the accepted employment factors altered his
preexisting condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and

4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

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

7

D.U., Docket No. 10-0144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

4

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.10
ANALYSIS
Appellant alleged that his preexisting bilateral hip, knees, and ankle osteoarthritis had been
aggravated by his federal employment. OWCP denied his claim finding that he had not submitted
sufficient medical evidence to establish causal relationship between the diagnosed medical
conditions and the accepted factors of his federal employment.
The Board finds that appellant has not submitted sufficient evidence to establish that his
preexisting bilateral hip, knees, and ankle osteoarthritis conditions were aggravated by his
accepted federal employment factors.
In reports dated May 2, 2013, and February 17 and April 4, 2014, Dr. Lahav diagnosed left
knee arthralgia, left knee medial compartment arthritis degeneration, and status post right total
knee arthroplasty, which he opined had been aggravated by appellant’s letter carrier duties. In an
August 4, 2014 report, he noted the duties of a letter carrier and provided a description of arthritis
including contributing factors. Dr. Lahav opined that the repetitive duties of stooping, walking,
climbing, squatting, stair climbing, bending, twisting, lifting, and carrying all caused stress on
appellant’s joints which caused chronic inflammation which resulted in acceleration of degradative
cartilage. In a November 23, 2015 report, he again reiterated his opinion that appellant’s work
duties aggravated his preexisting conditions. In support of this conclusion, Dr. Lahav explained
the aggravation was established by the increased intensity of appellant’s complaints with the
weight bearing activities required by his job. Moreover, he compared diagnostic tests as
supporting a causal relationship of aggravation by appellant’s work duties. Dr. Lahav concluded
that appellant’s work duties aggravated appellant’s preexisting arthritic condition without a
complete explanation of the mechanism involved. While his reports support that appellant’s
preexisting arthritic conditions progressed through the years, Dr. Lahav did not provide sufficient
medical rationale to explain how appellant’s employment duties in fact caused aggravation of the
underlying condition. Dr. Lahav listed appellant’s employment activities in general terms, he did
not explain any specific employment duty in detail. He did not provide a proper employment
history detailing how far appellant walked each day, the weight of the mail he lifted, or how often
he had to climb stairs, bend or stoop.11 Without proper explanation as to how specific employment
duties caused or contributed to the diagnosed condition, Dr. Lahav’s opinions on causal
relationship are of limited probative value.12
Dr. Lahav cited medical literature on the effect of physically demanding occupations on
the development of lower extremity osteoarthritis. However, the Board has held that medical texts
and excerpts from publications are of no evidentiary value in establishing the causal relationship
between a claimed condition and an employee’s federal employment as such materials are of
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

See J.F., Docket No. 17-0458 (issued October 2, 2017).

12

Id.

5

general application and are not determinative of whether the specific condition claimed is related
to the particular employment factors alleged by the employee.13 This material has probative value
only to the extent that it is interpreted and cited by a physician rendering an opinion on the causal
relationship between a condition and specified employment injury.14 Dr. Lahav cited the journal
articles in support of weight bearing stress activities causing and accelerating degenerative
osteoarthritis. He expressed his agreement with the research conclusions, but did not provide a
complete explanation of how these mechanisms were present in appellant’s case. The Board,
therefore, finds that the cited literature is of limited probative value and is insufficient on its own
to establish causal relationship.
The Board further finds that Dr. Lahav’s reports do not provide a biomechanical
explanation of how appellant’s federal employment duties resulted in in an aggravation of bilateral
hip, knees, and ankle osteoarthritis. Without explaining how physiologically the movements
involved in appellant’s employment duties caused or contributed to the diagnosed conditions,
Dr. Lahav’s opinion on causal relationship is equivocal in nature and of limited probative value.15
His reports therefore did not provide the necessary medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.16 The Board has previously held that conclusory statements not fortified by medical
rationale are insufficient to establish causal relationship between employment factors and
diagnosed conditions.17 Thus, these reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted reports from Mr. Hujdic, a physician assistant. The Board has
held that physician assistants18 are not considered physicians under FECA, and their opinions are
therefore of no probative medical value.19 These reports are therefore insufficient to meet
appellant’s burden of proof to establish causal relationship.
The record also contains a March 11, 2014 MRI scan. The Board has held that reports
of diagnostic tests are of limited probative value as they fail to provide an opinion on the causal

13

N.B., Docket No. 14-1702 (issued December 29, 2014); S.A., Docket No. 13-1551 (issued December 17, 2013);
Gloria J. McPherson, 51 ECAB 441 (2000); William C. Bush, 40 ECAB 1064, 1075 (1989).
14

C.S., Docket No. 12-1169 (issued November 5, 2012); Harlan L. Soeten, 38 ECAB 566, 567 (1987).

15

See S.C., Docket No. 17-0103 (issued May 2, 2017).

16

Leslie C. Moore, 52 ECAB 132, 134 (2000).

17

N.M., Docket No. 10-0283 (issued August 19, 2010).

18

Allen C. Hundley, 53 ECAB 551(2002).

19

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). See also M.J., Docket No. 171241 (October 17, 2017).

6

relationship between appellant’s employment duties and the diagnosed conditions. For this reason,
this evidence is insufficient to meet his burden of proof.20
As appellant has not submitted rationalized medical evidence to support his claim that his
bilateral hip, knees, and ankle osteoarthritis conditions were aggravated by factors of his federal
employment, he has not met his burden of proof.
On appeal counsel argues that it was error on the part of OWCP to reject Dr. Lahav’s three
reports. He further contends that OWCP substituted its opinion over Dr. Lahav’s opinion on the
issue of causal relationship. Lastly, counsel argues that the evidence or record is sufficient to
establish appellant’s claim. For the reasons set forth above, appellant has not met his burden of
proof as he failed to submit rationalized medical evidence supporting his claim. Further, it is
OWCP’s job to weigh the medical evidence submitted to determine whether it is sufficient to
establish appellant’s claim as was done in this case. OWCP did not substitute its opinion on
causation.
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 his burden of proof to establish that his bilateral
hip, knees, and ankle osteoarthritis conditions were causally related to the accepted factors of his
federal employment.

20

S.G., Docket No. 17-1054 (issued September 14, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 10, 2017 is affirmed.
Issued: March 23, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

8