United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Buffalo, NY, Employer
__________________________________________

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

Docket No. 08-569
Issued: June 23, 2008

Case Submitted on the Record

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

JURISDICTION
On December 18, 2007 appellant timely appealed the November 16, 2007 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the denial of her claim for
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant experienced a recurrence of disability on November 15,
2006, causally related to her June 9, 2006 employment injury.

1

The record on appeal includes evidence received after the Office issued its November 16, 2007 decision. The
Board cannot consider evidence for the first time on appeal. The review of a case shall be limited to the evidence in
the case record which was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 46-year-old canteen sales clerk, injured her lower back, right knee and right
ankle in the performance of duty on June 9, 2006. She was retrieving merchandise from a vault
when she stepped and landed awkwardly on her right foot. The Office accepted the claim for
right knee sprain, right ankle sprain and lumbago. Appellant was off work from June 10 to
July 17, 2006. She returned to work in a limited-duty capacity on July 18, 2006. Appellant’s
restrictions included minimal stooping, twisting and bending, no pushing or pulling, no squatting
or kneeling, minimal walking, no prolonged standing and no lifting in excess of 10 pounds. She
continued to work in a limited-duty capacity until November 16, 2006, when she stopped work.
On November 24, 2006 appellant filed a claim for recurrence of disability beginning
November 15, 2006. She stated that since her June 9, 2006 injury she continued to experience
low back pain. Some days were worse than others. Appellant indicated that a sale started at
work on Wednesday the 15th and she was very busy that day. Later that same evening, she
experienced back pain and could not stand up. Appellant claimed she had not sustained any new
injuries since her June 9, 2006 employment injury.
On November 16, 2006 appellant was treated by Betsy Dechert, a family nurse
practitioner, who noted that appellant was being seen for a new episode of pain related to her low
back. Appellant reportedly was “sitting on the floor last night helping her daughter with her
homework” and when she “tried to get up,” she “had unbearable pain in her left lower back.”
Although it was difficult to lie in bed, appellant eventually fell asleep. However, appellant was
later awakened by an asthma-related “coughing attack.” This seemed to cause her pain to flareup again. The pain was worse in appellant’s left buttocks and it radiated into her upper thigh.
Ms. Dechert also reported that appellant “was at work yesterday and remember[ed] doing some
type of lifting.” Her medical assessment was “worsening left lower back pain aggravated by
sitting on the floor and coughing spell....” Ms. Dechert excused appellant from work through
November 30, 2006, which she later extended. Appellant also submitted medical records for
treatment she received from another nurse practitioner, Stacy Dean, and from Anna Mychaskiw,
a physician assistant.
Dr. Leonard Kaplan, a pain management specialist, examined appellant on
December 14, 2006. He noted that appellant was a sales clerk who injured herself at work on
June 9, 2006 when she was stepping over a step and tripped, twisting her right ankle and hurting
her low back. Dr. Kaplan further reported that, since her injury, appellant had complained of
significant discomfort in the right lower back into the buttocks, which was worse with standing.
He also noted continued stiffness in the right ankle. According to Dr. Kaplan, appellant had
already undergone two months of physical therapy, without significant improvement of her
symptoms. He diagnosed sacroiliac joint dysfunction with pain and right ankle sprain with
dysfunction. Dr. Kaplan related appellant’s current condition to her workers’ compensation
injury. He released appellant to return to work effective December 15, 2006 with restrictions of
no repetitive bending, lifting, and twisting, no lifting greater than 15 pounds, no prolonged
standing greater than 30 minutes and no prolonged sitting greater than 20 minutes. Dr. Kaplan
also recommended that appellant switch to a different department. The work restrictions were to
remain in effect until January 18, 2007.

2

Dr. Kaplan next saw appellant on January 19, 2007. Her symptoms reportedly had not
changed since her last visit. His treatment notes indicated that appellant was not working
because there was no light-duty work available. Dr. Kaplan’s diagnoses included sacroiliac joint
dysfunction, right ankle sprain and dysfunction and possible lumbar discogenic pain.
Appellant’s disability status remained the same.
In a decision dated April 4, 2007, the Office denied appellant’s claim for recurrence of
disability.
Appellant requested an oral hearing, which was held on September 20, 2007. The Office
received March 28 and May 1, 2007 treatment records from Ms. Dean, the nurse practitioner
who previously treated appellant for her back condition.
By decision dated November 16, 2007, the hearing representative affirmed the April 4,
2007 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn -- except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force -- or when the physical requirements of
such an assignment are altered so that they exceed her established physical limitations.3
Moreover, when the claimed recurrence of disability follows a return to light-duty work, the
employee may satisfy her burden of proof by showing a change in the nature and extent of the
injury-related condition such that she was no longer able to perform the light-duty assignment.4
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.5 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.6 The medical evidence

2

20 C.F.R. § 10.5(x).

3

Id.

4

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

5

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
6

See Helen K. Holt, supra note 5.

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must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.7
Appellant’s claim was accepted by the Office for right knee and ankle sprains and
lumbago.
She returned to limited-duty work on July 18, 2006 and worked until
November 15, 2006.
ANALYSIS
The Board notes that the opinions expressed by the two nurse practitioners and the
physician’s assistant are not sufficient to establish that her disability commencing November 15,
2006 is related to her June 9, 2006 injury. A physician’s assistant and nurse practitioners are not
physicians as defined under the Federal Employees’ Compensation Act.8
Ms. Dechert, although not a physician, was the first medical professional to examine
appellant following her claimed recurrence of disability beginning November 15, 2006. While
her diagnosis and disability assessment are not probative, the history she reported is noteworthy.
A “recurrence” by definition is caused by a “spontaneous change” in a medical condition.9
However, Ms. Dechert’s November 16, 2006 treatment notes referenced three potential causative
factors for appellant’s current back condition that would not be considered spontaneous. First,
she reported that appellant experienced unbearable pain when she “tried to get up” after sitting
on the floor at home with her daughter. Ms. Dechert also noted that a subsequent “coughing
attack” seemed to cause a flare-up of appellant’s back pain. She also mentioned that appellant
recalled doing some “type of lifting” at work the previous day. All three references suggest
something other than a spontaneous change in appellant’s medical condition.
Dr. Kaplan was the only physician to examine appellant for her claimed recurrence of
disability. However, his initial examination occurred almost a month after the alleged
November 15, 2006 recurrence. Dr. Kaplan’s two reports do not include any reference to the
work-related lifting appellant reportedly performed on November 15, 2006 or the pain she
experienced when getting up from the floor later that evening or her subsequent coughing attack.
He also did not express any knowledge of the limited-duty work appellant had been performing
prior to her November 15, 2006 work stoppage. Dr. Kaplan’s only reference to appellant’s work
was that she was employed as a “sales clerk.” Thus, his opinion on causal relationship cannot be
considered properly rationalized.10 Accordingly, the medical evidence does not demonstrate a
spontaneous change in the nature and extent of the injury-related condition such that appellant
was no longer able to perform her light-duty assignment. The work restrictions Dr. Kaplan
imposed beginning December 15, 2006 are similar to the limitations in effect when appellant
initially returned to work July 18, 2006. The record also does not establish that appellant’s
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

8

A physician’s assistant or nurse practitioner is not considered a “physician,” as that term is defined under
5 U.S.C. § 8101(2). See e.g., Roy L. Humphrey, 57 ECAB 238, 242 (2005).
9

20 C.F.R. § 10.5(x).

10

See Helen K. Holt, supra note 5; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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limited-duty assignment was either withdrawn or altered to the extent that her assigned duties
were no longer compatible with her physical limitations. Appellant has failed to establish her
claim.
CONCLUSION
Appellant has not established that she experienced a recurrence of disability on
November 15, 2006, causally related to her June 9, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Danville, IL, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1644
Issued: September 21, 2009

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 21, 2008 appellant, through his attorney, filed a timely appeal from a July 19,
2007 merit decision of the Office of Workers’ Compensation Programs and a February 25, 2008
hearing representative’s decision finding that he did not establish a recurrence of disability.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that he sustained an employment-related
recurrence of disability on October 19, 2001.

1

By decision dated July 20, 2007, the Office retroactively reduced appellant’s compensation, finding that his
actual earnings as a mail processing equipment operator fairly and reasonably represented his wage-earning
capacity. Appellant has not appealed from this decision and it is not before the Board at this time. 20 C.F.R.
§ 501.2(c).

FACTUAL HISTORY
This case is before the Board for the third time. By decision dated October 6, 2004, the
Board reversed a September 30, 2003 Office decision finding that appellant had not established a
recurrence of disability on October 19, 2002 or warranted modification of the established loss of
wage-earning capacity determination.2 The Board noted that the Office had issued a retroactive
wage-earning capacity determination after he stopped work and filed a claim for wage-loss
compensation. The Board found that, prior to issuing the loss of wage-earning capacity
determination, the Office should have adjudicated whether appellant sustained an employmentrelated recurrence of disability. The Board concluded that appellant established that the loss of
wage-earning capacity decision was erroneously issued. On appeal, for the second time, the
Board reversed a May 31, 2006 decision affirming a wage-earning capacity determination and
finding that appellant did not establish a recurrence of disability.3 The Board noted that the
Office had not complied with its instructions to adjudicate whether appellant sustained a
recurrence of disability prior to issuing a retroactive wage-earning capacity determination. The
findings of fact and conclusions of law from the prior decisions are incorporated by reference.
On October 19, 2001 Dr. Michel H. Malek, an attending Board-certified neurosurgeon,
diagnosed failed back syndrome and opined that appellant should remain off work for four weeks
while pending the results of diagnostic studies. He stated, “Given [appellant’s] incapacitation, I
think it not unreasonable to keep him off work for about a week or so during the time these
studies are performed.” On October 29, 2001 Dr. Malek advised that appellant should remain off
work until November 9, 2001. In a progress report dated November 9, 2001, he diagnosed a
history of a lumbar fusion “which has not taken” and found that appellant could not work as of
October 19, 2001 due to pain. Dr. Malek interpreted a computerized tomography (CT)
myelogram as showing foraminal narrowing, especially at L4-5 and L5-S1 and “no evidence of
any definite solid fusion.” On December 4, 2001 he indicated that appellant was off work
beginning October 19, 2001 due to increased back and left leg pain and the need for extensive
testing.
In a report dated December 4, 2001, Dr. Suhail N. Alnaqib, a Board-certified internist,
noted that appellant was off work beginning October 19, 2001 due to increased back and left leg
pain. He advised against any work until further notice.
In a December 7, 2001 work status report, Dr. Malek diagnosed failed back syndrome, a
failed fusion, problems with appellant’s leg supporting his weight, back pain and leg pain. He
again recommended that appellant remain off work for four weeks. Dr. Malek found that
appellant’s symptoms might be due to failure of the L4-5 fusion and recommended possible
surgery.
2

Docket No. 04-569 (issued October 6, 2004). The Office accepted that on June 1, 1995 appellant, then a
50-year-old warehouseman, sustained lumbosacral strain and a herniated disc at L4-5. It further accepted that he
sustained lumbar strains on October 19, 1988 and October 21, 1992. Appellant underwent a laminectomy and
microdiscectomy at L4-5 on June 10, 1996. On January 25, 2000 he underwent a bilateral lateral fusion at L4-5 and
on February 5, 2001 he sustained an exacerbation of the lumbar spinal fusion. On July 1, 2001 appellant returned to
work as a full-time mail processing equipment handler.
3

Docket No. 06-1981 (issued March 19, 2007).

2

On December 12, 2001 Dr. John L. Beghin, a Board-certified orthopedic surgeon, noted
that appellant stopped work on October 19, 2001 due to progressively severe symptoms. He
noted that a November 8, 2001 CT scan showed a probable intact fusion on the left at L4-5 and a
“questionable fusion on the right.” Dr. Beghin found that a magnetic resonance imaging scan
study showed no nerve root compression or disc herniation. He stated, “I have issued an off
work excuse dating back to October 19, 2001, which will be effective until [appellant] can
undergo implant removal and recover from the surgical procedure.” Dr. Beghin excused
appellant from work beginning October 19, 2001 due to pain rather than objective evidence of an
abnormality. He asserted that hardware removal might help with his pain complaints.
On February 15, 2002 Dr. James J. Harms reviewed appellant’s history of injury and
medical treatment and the diagnostic studies of record. He opined that appellant’s pain could be
from degenerative changes, nerve inflammation, leading chemicals, sensitive nerves or a fusion
failure. Dr. Harms found that the CT scan was suspicious but not definitive for a fusion that had
not healed. He recommended against further surgery.
In a note dated February 18, 2002, Dr. Beghin advised that appellant had chronic pain of
unclear origin that may be due to pseudoarthrosis. Appellant was unable to work from
February 19 to March 19, 2002. On February 18, 2002 Dr. Thomas L. Sutter, an osteopath,
diagnosed chronic back pain but advised that appellant could work at a light sedentary level.
On August 26, 2002 Dr. Alnaqib discussed his treatment of appellant from February 27,
2001 onward. Appellant was unable to work due to pain and the need for medication.
Dr. Alnaqib indicated that appellant was no longer able to work and that he was “first off work
October 19, 2001 [with] fusion failure.”
On June 11, 2002 Dr. Richard R. Rak, a Board-certified neurosurgeon, diagnosed back
and leg pain following two back surgeries. He reviewed the diagnostic studies and noted that
there was possible nonunion of the fusion on the right by CT scan. Dr. Rak listed findings on
examination and concluded, “At this point, [appellant] is really incapacitated and not able to
work.”
On October 7, 2002 Dr. Malek related that appellant’s work restrictions set forth on
July 2000 extended to the present date. He diagnosed a failed back fusion. Dr. Malek noted that
a discogram on November 27, 2001 showed no evidence of fusion and was negative at L3-4 but
positive at L5-S1. He stated, “Based on the above, I do not think that [appellant] can perform the
above duties and therefore his condition of disability is permanent until his condition is
addressed medically.”
In a report dated December 12, 2002, Dr. Judith R. Lee-Sigler, a Board-certified
psychiatrist, noted that appellant had worked with restrictions from February to October 2001.
She stated:
“[A] second attempt to return to work without any further diagnostics or treatment
would lead to ultimate failure, thus the rationale for [appellant’s] off work
status…. In summary, it is not that he had objective weakness that le[d] to his off
work status, but rather that he had failed attempts to return to work without what I

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considered intervention to facilitate a return to work or even a second functional
capacity evaluation determining basic work restrictions.”4
By decision dated July 19, 2007, the Office found that appellant did not establish a
recurrence of disability on October 19, 2001 causally related to his accepted work injury.5 In a
decision dated July 20, 2007, it retroactively reduced his compensation, finding that his actual
earnings as a mail processing equipment operator fairly and reasonably represented his wageearning capacity.6 On August 16, 2007 appellant, through his attorney, requested an oral hearing
regarding the July 19, 2007 decision.
A hearing was held on December 14, 2007. Subsequent to the hearing, appellant
submitted additional medical evidence.7 On August 26, 2002 Dr. Timothy Lund, Board-certified
in family and preventive medicine, diagnosed chronic low back pain with some evidence of
right-sided spasms. He listed work restrictions and suggested beginning at four hours per day
due to deconditioning. On August 29, 2002 Dr. Lund diagnosed chronic low back pain. He did
not change the work restrictions. On September 3, 2002 Dr. Lund diagnosed an acute
exacerbation of chronic lumbar pain and noted that appellant related that the employing
establishment was not adhering to his limitations. In a disability certificate dated October 2,
2002, Dr. Alnaqib found that appellant was unable to work until evaluated by a physician for
chronic back and leg pain.
In a March 5, 2003 settlement agreement, the employing establishment agreed to support
appellant’s application for disability retirement based on a nonwork-related injury or disease. On
April 2, 2003 the Office of Personnel Management approved his application for disability
retirement.
By decision dated February 25, 2008, the hearing representative affirmed the July 19,
2007 decision. He determined that none of the physicians provided objective findings supporting
disability from employment.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
4

In a report dated March 12, 2002, Dr. Lee-Sigler diagnosed status post lumbar sprain/strain, failed back
syndrome, degenerative disc disease with nerve root irritation and L5 radiculitis. She opined that appellant should
remain off work. Dr. Lee-Sigler submitted throughout 2002.
5

The Office noted that appellant returned to work for partial days in August 2002. It accepted that he sustained
an aggravation of cervical radiculitis due to lying on a concrete floor under file number xxxxxx237.
6

As previously noted, appellant has not appealed this decision and thus it is not before the Board.

7

Appellant also submitted evidence already considered by the Office and set forth in prior decisions.

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employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.8
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.9 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.10
ANALYSIS
The Office accepted that appellant sustained lumbosacral strain, a herniated disc at L4-5
and an exacerbation of a lumbar spinal fusion due to work injuries. Appellant sustained
intermittent periods of disability. The Office authorized a June 10, 1996 laminectomy and
microdiscectomy at L4-5 and a January 25, 2000 bilateral lateral mass fusion at L4-5. On July 1,
2001 appellant began working for the employing establishment as a mail processing equipment
handler. He stopped work on October 19, 2001. On November 8, 2001 appellant filed a claim
requesting compensation beginning that date.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. Instead, he attributed his recurrence of disability to a change in the nature and
extent of his employment-related conditions. Appellant must thus provide medical evidence
establishing that he was disabled due to a worsening of his accepted work-related conditions.11
Appellant submitted reports from physicians who generally advised that he was unable to
work beginning October 19, 2001 due to increased pain and a possible fusion failure. He did not,
however, submit evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concluded that his disability was causally related to his work injury and
supported that conclusion with sound medical reasoning.12 On October 19, 2001 Dr. Malek
diagnosed failed back syndrome and opined that appellant should remain off work for four weeks
or pending the results of diagnostic studies. On October 29, 2001 he found that appellant should
remain off work until November 9, 2001. In a progress report dated November 9, 2001,
Dr. Malek diagnosed a lumbar fusion which may have been unsuccessful based on a CT
myelogram and found that appellant could not work beginning October 19, 2001 due to pain. On
8

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

9

20 C.F.R. § 10.5(x).

10

Id.

11

See Jackie D. West, supra note 8.

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

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December 4, 2001 he related that appellant was unable to work beginning October 19, 2001 due
to increased back and left leg pain and the need for extensive testing. In a December 7, 2001
work status report, Dr. Malek diagnosed failed back syndrome, a failed fusion, back pain and leg
pain. He recommended that appellant remain off work for four weeks. Dr. Malek opined that
appellant’s symptoms might be due to failure of the L4-5 fusion and recommended possible
surgery. In his reports, however, he did not explain why appellant was no longer able to perform
his light-duty employment. Instead, Dr. Malek speculated that he may have had an unsuccessful
fusion and recommended further evaluation. The Board thus finds that Dr. Malek’s reports are
of diminished probative value as they do not contain sufficient medical rationale to demonstrate
that his conclusion reached regarding appellant’s disability was sound, logical and rationale.13
On December 4, 2001 Dr. Alnaqib related that appellant was off work beginning
October 19, 2001 due to increased back and left leg pain. He advised against any work until
further notice. Dr. Alnaqib, however, did not explain why appellant was unable to perform his
limited-duty employment. Additionally, findings on examination are needed to justify a
physician’s opinion that an employee is disabled for work.14
On August 26, 2002 Dr. Alnaqib related that appellant was disabled from work because
of pain and the necessity for medication. In another report of the same date, he indicated that
appellant was unable to work beginning October 19, 2001 due to fusion failure. Dr. Alnaqib,
however, did not include rationale explaining how he reached his conclusion regarding disability.
Consequently, his opinion is of diminished probative value.15
On December 12, 2001 Dr. Beghin noted that appellant stopped work on October 19,
2001 due to progressively severe symptoms. He found that a November 8, 2001 CT scan
showed a probable intact fusion on the left at L4-5 and a “questionable fusion on the right.”
Dr. Beghin stated, “I have issued an off work excuse dating back to October 19, 2001, which will
be effective until [appellant] can undergo implant removal and recover from the surgical
procedure.” In another note dated December 12, 2001, Dr. Beghin clarified that he excused
appellant from work beginning October 19, 2001 due to pain rather than evidence of an
abnormality. He did not find appellant disabled because of a change in his condition but instead
due to his pain complaints. When a physician’s statements regarding an employee’s ability to
work consists only of a repetition of the employee’s complaints that he hurt too much to work
without objective signs of disability being shown, the physician has not presented a medical
opinion on the issue of disability or a basis for payment of compensation.16 Further, pain, is a
description of symptoms rather than a clear diagnosis of a medical condition and does not
constitute a basis for the payment of compensation.17

13

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 4, 2007).

14

Laurie S. Swanson, 53 ECAB 517 (2002).

15

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

16

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

17

Robert Broome, 55 ECAB 339 (2004).

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On February 18, 2002 Dr. Beghin diagnosed chronic pain of uncertain origin and found
that appellant was unable to work. He did not, however, provide a firm diagnosis of appellant’s
condition. Without a firm diagnosis supported by medical rationale, the report is of little
probative value.18
On February 15, 2002 Dr. Harms asserted that appellant’s complaints of pain could be
from a number of causes, including degenerative changes, nerve inflammation, leading
chemicals, sensitive nerves or a fusion failure. He opined that the CT scan was suspicious but
not definitive for a fusion that had not healed. Dr. Harms recommended against further surgery.
As he did not address the issue of disability beginning October 2001, his opinion is of little
probative value.
On June 11, 2002 Dr. Rak diagnosed back and leg pain following two back surgeries. He
found that diagnostic studies showed a possible nonunion of a fusion. Dr. Rak opined that
appellant was disabled from employment. He did not, however, provide any supporting rationale
for appellant’s conclusion that he was unable to perform his limited-duty work. Medical
conclusions unsupported by rationale are of diminished probative value.19
Dr. Lund evaluated appellant on August 26, 2002 and listed work restrictions. As he did
not address the issue of whether appellant sustained a recurrence of disability beginning
October 2001, his report is of little probative value.
In a report dated December 12, 2002, Dr. Lee-Sigler noted that appellant worked with
restrictions from February to October 2001. She related that she took him off work not because
of “objective weakness” but because he required assistance and possibly another functional
capacity evaluation to increase his chance of a successful return. Dr. Lee-Sigler’s disability
finding appears to be prophylactic in nature; however, the possibility of future injury does not
constitute a basis for the payment of compensation under the Federal Employees’ Compensation
Act.20
On appeal, appellant’s attorney argues that the medical evidence establishes that
appellant was disabled beginning October 19, 2001. As discussed, however, appellant has not
submitted rationalized medical evidence supporting that he was disabled beginning
October 19, 2001. Consequently, he has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an employmentrelated recurrence of disability on October 19, 2001.

18

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
19

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

20

See Brenda L. DuBuque, 55 ECAB 212 (2004); Manuel Gill, 52 ECAB 282 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 25, 2008 and July 19, 2007 are affirmed.
Issued: September 21, 2009
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

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

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Docket No. 11-1763
Issued: February 27, 2012

Case Submitted on the Record

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

On July 26, 2011 appellant filed an application for review of a February 23, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. The appeal was docketed as number 11-1763. The Board finds that this case is
not in posture for a decision.
The present appeal involves appellant’s May 1, 2010 occupational disease claim in which
appellant alleged that she sustained injuries to her lower back, left hip and left leg as a result of
her employment activities as a clerk. The record contains medical reports from appellant’s
treating physician, who diagnosed degenerative disc disease and opined that her condition was
causally related to her job activities and to an altered gait resulting from her prior knee injury.
The record indicates that appellant’s June 6, 1997 traumatic injury claim was accepted for
right meniscus tear. Appellant underwent four approved right knee surgeries, culminating in a
total right knee replacement and returned to work with permanent restrictions. In this case, both
appellant and her physician contend that her claimed back, knee and hip condition are causally
related to residuals of the accepted injury in File No. xxxxxx514, which in turn were exacerbated
by her employment activities. The record, however, does not contain any evidence relating to
the development of the 1997 claim. The Board finds that the medical evidence contained in File

No. xxxxxx514 will necessarily bear directly on appellant’s claim for compensation in File No.
xxxxxx627.
Because it is essential for the Board to review the medical evidence contained in file
number xxxxxx514 in order to render a full and fair adjudication of the present appeal, this case
will be remanded for OWCP to consolidate case files xxxxxx514 and xxxxxx627.
Reconstruction of the record will be followed by a de novo decision on the merits of the claim, in
order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT February 23, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further development
consistent with this order.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Leadville, CO, Employer
__________________________________________

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

Docket No. 07-984
Issued: August 9, 2007

Case Submitted on the Record

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

JURISDICTION
On February 8, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 8, 2006 denying his traumatic injury
claim and the January 26, 2007 nonmerit decision denying his 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 traumatic injury while in the
performance of duty on October 3, 2006; and (2) whether the Office properly refused to reopen
appellant’s case for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 4, 2006 appellant, a 31-year-old forestry technician, filed a traumatic injury
claim alleging that on October 3, 2006 he injured his back as he was hauling tundra and carrying
racks in the performance of duty. He did not stop working.

Appellant submitted undated prescriptions and an October 3, 2006 attending physician’s
report from Dr. Wayne Callen, Board-certified in the field of family medicine, providing a
diagnosis of left leg sciatica. The record also contains a report of an October 13, 2006 telephone
call, in which Dr. Callen informed the employing establishment that appellant should not work
until he was examined by an orthopedist. On October 26, 2006 the Office asked Dr. Callen to
provide all medical records related to the diagnosis and treatment of the injury sustained by
appellant on October 3, 2006.
In notes dated October 13, 2006, Dr. Callen stated that appellant “worked trail crew
doing lifting” and had been experiencing pain in his back and down his leg, which was
improving. He characterized appellant’s condition as lumbar disc disease. On October 25, 2006
Dr. Callen indicated that appellant’s leg and buttock pain continued and diagnosed left leg
sciatica. An October 13, 2006 report of an x-ray of the lumbar spine reflected no significant
abnormalities of the spine, but showed “questionable abnormality symphysis pubis which could
represent artifact.”
On November 2, 2006 the Office notified appellant that the evidence submitted was
insufficient to establish his claim and advised him to provide additional documentation,
including a firm diagnosis and a physician’s opinion as to how his October 3, 2006 injury
resulted in the diagnosed condition. The Office informed him that sciatica was not considered a
diagnosis, but rather was a symptom characterized by pain.
Appellant submitted a November 6, 2006 Physician’s Report of Workers’ Compensation
Injury from Dr. Scott E. Raub, a Board-certified physiatrist. The report indicated that the date of
injury was October 3, 2006 and provided a work-related diagnosis of “LBP(L) [lower back pain
(left)] pain (HNP L4-5/L5-6).” In an accompanying request for a magnetic resonance imaging
(MRI) scan of the lumbar spine, Dr. Raub stated that the purpose of the scan was “to evaluate for
L5-S1/L4-5 HNP.” In response to an inquiry as to whether the injury was work related, he
circled the word, “yes.” In a narrative report dated November 6, 2006, Dr. Raub indicated that
appellant was injured at work on October 3, 2006 while repeatedly lifting rocks and hauling
buckets. He noted the onset of low back pain across the L5 junction and out to the left iliac area.
Dr. Raub reported lateral thigh pain, occasional lateral calf pain. He provided an impression of
low back pain, with left leg pain and possible left L5 or S1 radicular pain. The record contains
an October 19, 2006 report of an x-ray of the pelvis.
By decision dated December 8, 2006, the Office denied appellant’s claim, finding that he
had failed to establish the fact of injury. The Office accepted that the incident occurred as
alleged, but found that appellant had submitted no medical evidence providing a specific
diagnosis which could be connected to the established event.
On January 5, 2007 appellant requested reconsideration. He submitted physical therapy
notes from J. Graham, a physical therapist, for the period December 1 through 8, 2006, reflecting
appellant’s pain in his back, hips and left leg.
By decision dated January 26, 2007, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant a merit review.

2

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Florencio D. Flores, 54 ECAB 250 (2004).

9

20 C.F.R. § 10.303(a).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the workplace incident occurred as alleged. The issue,
therefore, is whether he has submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion establishing that the work-related incident caused or aggravated any
particular medical condition or disability. Therefore, appellant has failed to satisfy his burden of
proof.
Contemporaneous medical evidence of record includes an October 3, 2006 attending
physician’s report from Dr. Callen providing a diagnosis of left leg sciatica. In notes dated
October 13, 2006, Dr. Callen stated that appellant had been experiencing pain in his back and
down his leg, which was improving. On October 25, 2006 he indicated that appellant’s leg and
buttock pain continued and diagnosed left leg sciatica. Dr. Callen characterized appellant’s
condition as lumbar disc disease. These documents lack probative value for several reasons.
Dr. Callen’s characterization of appellant’s condition must be considered more a reflection of his
symptoms rather than a specific diagnosis.11 The Board has held that a diagnosis of pain does
not constitute a basis for payment of compensation.12 Nonspecific diagnoses of sciatica and
lumbar disc disease, without details describing the nature of these conditions, are insufficient to
establish appellant’s claim. Moreover, the reports fail to provide an opinion as to the cause of
appellant’s condition. The Board has long held that medical evidence which does not offer any
opinion regarding causal relationship is of limited probative value.13
Dr. Raub’s reports are also insufficient to establish appellant’s claim. On November 6,
2006 he diagnosed low back pain, with left leg pain and “possible” left L5 or S1 radicular pain.
As noted above, a diagnosis of pain is considered a symptom rather than a specific diagnosis.
Additionally, Dr. Raub’s diagnosis was not definitive. He stated that appellant was injured at
work on October 3, 2006 while repeatedly lifting rocks and hauling buckets. In response to an
10

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

11

Thomas L. Hogan, 47 ECAB 323 (1996).

12

See Robert Broome, supra note 4. Dorland’s defines “sciatica” as a syndrome characterized by pain radiating
from the back into the buttock and into the lower extremity. The term is also used to refer to pain anywhere along
the course of the sciatic nerve. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (30th ed. 2003).
13

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

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inquiry as to whether the injury was work related, he circled the word, “yes.” However,
Dr. Raub did not provide detailed results of an examination or explain the nature of the
relationship between appellant’s condition and the work-related incident. A report that addresses
causal relationship with a checkmark, without a medical rationale explaining how the work
conditions caused the alleged injury, is of diminished probative value and is insufficient to
establish causal relationship.14 As Dr. Raub’s opinion was not rendered to a reasonable medical
certainty and was not supported by medical rationale explaining the nature of the relationship
between a diagnosed condition and the established incident, it is of diminished probative value.15
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and doctor’s
opinion, with medical reasons, on the cause of his condition. He failed to submit appropriate
medical documentation in response to the Office’s request. As there is no probative, rationalized
medical evidence addressing how appellant’s claimed condition was caused or aggravated by his
employment, he has not met his burden of proof in establishing that he sustained a traumatic
injury in the performance of duty causally related to factors of employment. The Board,
therefore, affirms the Office’s December 8, 2006 and January 26, 2007 decisions denying
benefits for appellant’s claimed back condition.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,16 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulation, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
(1) Shows that the Office erroneously applied or interpreted a specific point of
law; or
(2) Advances a relevant legal argument not previously considered by the Office;
or
(3) Constitutes relevant and pertinent new evidence not previously considered by
the Office.17

14

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

15

John W. Montoya, supra note 10.

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b).

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Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.18
ANALYSIS -- ISSUE 2
Appellant’s January 5, 2007 reconsideration request neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. The Board finds
that appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also failed to meet the third requirement of constituting relevant and pertinent
new evidence. In support of his reconsideration request, he submitted physical therapy notes
signed by Mr. Graham, a physical therapist. Pursuant to section 8101(2) of the Act, the term
“physician” includes surgeons, podiatrists, dentists, psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice.19 Lay individuals, such as
physical therapists, are not physicians as defined by the Act. Therefore, their opinions do not
constitute competent, relevant evidence. The Board finds that the Office properly determined
that appellant was not entitled to a review of the merits of his claim pursuant to any of the three
requirements under section 10.606(b)(2) and properly denied his January 5, 2007 request for
reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury to his back in the performance of duty on October 3, 2006. The
Board further finds that the Office properly refused to reopen appellant’s case for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(b).

19

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB ___ (Docket No. 1928, issued November 23, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the January 26, 2007 and December 8, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 9, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
REGION SOUTHEAST, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 13-1899
Issued: December 24, 2013

Case Submitted on the Record

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

JURISDICTION
On August 12, 2013 appellant filed a timely appeal from an April 15, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a right inguinal hernia
causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 24, 2012 appellant, then a 55-year-old plastic fabricator, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right inguinal hernia in the performance of duty
on July 16, 2012. His claimed injury occurred after operating a 200 pound orbital floor stripper
for approximately two hours a day for a week. On July 17, 2012 appellant awoke with
significant pain and swelling. The employing establishment controverted his claim in statements
from a supervisor and a coworker.
In a narrative statement dated July 19, 2012, Gail Nelson, a supervisor, described the
events alleged to have caused appellant’s right inguinal hernia. She stated that he was sent to a
bearing shop on or around July 9, 2012 on light duty. Appellant was assigned to help Carl
Dendy, a custodial worker, with cleaning, stripping, mopping and waxing the bearing shop,
oxygen shop and rubber shop as needed. However, Mr. Dendy did most of the buffing and
stripping of the floors, while appellant was sitting or standing around talking. On July 12, 2012
he and appellant stripped and mopped a room. Ms. Nelson asked Mr. Dendy if appellant was
helping with the floors because she saw that appellant was sitting around with a mop.
Mr. Dendy responded that appellant was helping, but that he had done most of the buffing
himself. On July 16, 2012 appellant used the buffer to strip a part of a room in the oxygen shop
for about two hours. Later that day, Ms. Nelson noticed that he was standing around the oxygen
shop and she sent him to the bearing shop to dust mop the walkway from the front door to the
back. She noted that appellant at no time stated that he had hurt himself or complained of being
in any pain.
In a narrative statement dated July 19, 2012, Mr. Dendy described the events alleged to
have caused appellant’s condition. He noted that appellant operated the buffer for approximately
eight hours during the two-week period he worked with him. On July 12, 2012 appellant
returned from lunch and told Mr. Dendy that he was hurting, without specifying where or what
type of pain he experienced. On July 16, 2012 Ms. Nelson assigned them to clean, strip and mop
an area that had previously contained a lathe. Appellant helped to strip about one-third of the
room, then began to talk to other coworkers. Ms. Nelson reassigned him to dust mop the bearing
shop’s main aisle. While Mr. Dendy was showing appellant where the dust mops were kept,
appellant stated that he did not want to work in this area anymore. After appellant finished dust
mopping, he told him that he was going to try and find somewhere to hide.
In a medical referral and supervisor’s report dated July 19, 2012, a physician’s assistant
and a supervisor checked boxes indicating that it was questionable whether appellant’s injury
was occupational. The physician’s assistant noted a possible hernia, restrictions to desk work
only and referral to a surgeon.
In a consent form for surgical procedure dated July 23, 2012, appellant authorized
Dr. Anthony J. Pacitti, a Board-certified surgeon, to repair a right inguinal hernia.
In a report dated July 23, 2012, Dr. Pacitti described the history of appellant’s present
condition. He stated that appellant had worked several weeks before with a floor sander,
experiencing acute pain in the right inguinal area and subsequently had marked swelling of the
right hemiscrotum. Dr. Pacitti noted that on further questioning, although the acute episode of

2

the condition was described as only a few weeks old, appellant noted that he did have some
discomfort in the area several months before. Appellant stated that he had an ultrasound in
March 2012, which showed only a left hydrocele. Dr. Pacitti stated that his assessment that
appellant had a very large right inguinal hernia.
In a July 25, 2012 letter, Dr. Pacitti noted that appellant was to receive a surgical
procedure to correct a right inguinal hernia and would need to be excused from work until
August 17, 2012. In an operative report of the same date, he stated that his findings that
appellant had a large indirect chronic right inguinal hernia and a moderately-sized direct inguinal
hernia defect of the floor of the inguinal canal. Dr. Pacitti stated that appellant’s cremasteric
muscle fibers were markedly hypertrophic.
In a chronological record of medical care dated July 19, 2012, a physician’s assistant
noted that appellant had no symptoms on July 16, 2012, but that he woke up the next day with a
testicle full of fluid. Appellant attributed his condition to use of a stripping buffer on July 16,
2012, but denied any pain while using the buffer.
By letter dated August 10, 2012, the employing establishment challenged appellant’s
claim, on the basis that he had failed to provide the required rationalized medical opinion
evidence necessary to prove causal relation. It also asserted that the treatment sought by him
was necessary only due to the progression of his preexisting chronic nonwork-related condition.
The employing establishment stated that Dr. Pacitti’s operative report of July 25, 2012 noted that
appellant’s condition had existed for such a time as to effect marked hypertrophy of the
cremasteric muscle fibers. It noted that appellant attributed the right inguinal hernia to the use of
a floor buffer, yet denied any pain while using the buffer, in the chronological record of medical
care dated July 19, 2012.
In an attending physician’s report dated July 30, 2012, Dr. Pacitti checked a box
indicating that appellant’s condition was caused or aggravated by employment activity,
explaining that his right inguinal hernia was preexisting, but aggravated by employment activity.
He recommended work restrictions of no heavy lifting over 10 pounds and no strenuous activity.
In a Form CA-7 dated March 4, 2013, appellant requested to buyback leave for time lost
from work from July 23 to August 17, 2012. A time analysis (Form CA-7a) dated March 4,
2013 indicated that he lost time from work on these dates due to surgery and recovery.
By letter dated March 12, 2013, OWCP requested additional factual and medical
evidence from appellant. It noted that the factual evidence submitted was insufficient to
establish that he was injured in the performance of duty and the medical evidence submitted was
insufficient to establish causal relationship. OWCP stated that, based on appellant’s description
of events, his claim ought to have been filed as an occupational disease claim. It afforded him 30
days to submit additional evidence. OWCP also requested additional medical and factual
evidence from the employing establishment, requesting that it supply appellant’s light-duty work
restrictions, a description of the physical requirements for the position of plastic fabricator and
treatment notes from the employing establishment medical facility.

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By e-mail dated April 1, 2013, the employing establishment responded to OWCP’s
inquiries. It stated that appellant was not on work restrictions as a sheet metal mechanic, but that
he was on vision restrictions as a plastics fabricator at the claimed time of injury.
In a report dated August 20, 2012, Dr. Karen M. Allstadt, an internist, reported that
appellant had a previous history of work restrictions for vision.3 She noted that he had
occasional right groin pain with certain movements after his surgery.
By decision dated April 15, 2013, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to support that his right inguinal hernia condition was
causally related to the July 16, 2012 traumatic event. As the underlying claim was denied, it also
denied his request to buyback leave.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.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

3

The case record does not contain appellant’s specific work restrictions before July 16, 2012. It also does not
contain a record of his light-duty appointment to a position as a custodial assistant.
4

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Michael E. Smith, 50 ECAB 313, 315 (1999).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

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the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.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 reasoned opinion on whether
there is a causal relationship between the claimant’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 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.9 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.10
ANALYSIS
Appellant alleged that he sustained a right inguinal hernia as a result of using an orbital
floor stripper in the performance of duty.11 OWCP accepted that the employment factors may
have occurred, that a medical condition was diagnosed and that he was within the performance of
duty. It denied the claim, finding that the medical evidence was insufficient to support that
appellant’s condition was caused or aggravated by factors of employment. The Board finds that
he failed to meet his burden of proof to establish an injury as a result of factors of his federal
employment.
Appellant submitted documents from Dr. Pacitti and Dr. Allstadt including diagnoses,
treatment notes and references to work restrictions. However, these documents did not contain
an opinion that he sustained any specific condition due to factors of his federal employment. In a
consent form for surgical procedure dated July 23, 2012, appellant authorized Dr. Pacitti to
repair a right inguinal hernia. By letter dated July 25, 2012, Dr. Pacitti noted that appellant was
to receive a surgical procedure to correct a right inguinal hernia on that day and would need to be
excused from work until August 17, 2012. In an operative report of the same date, he stated that
his findings that appellant had a large indirect chronic right inguinal hernia and a moderatelysized direct inguinal hernia defect of the floor of the inguinal canal. Dr. Pacitti stated that
appellant’s cremasteric muscle fibers were markedly hypertrophic. In a report dated
7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

9

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

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

11

A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). As
appellant alleged that his right inguinal hernia resulted from operation of a floor stripper over the course of a week,
his claim is for an occupational disease.

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December 9, 2011, Dr. Allstadt noted that appellant had passed the vision requirements for the
position of sheet metal mechanic and that he was released without limitations. In a report dated
March 9, 2012, she noted that he could not perform tasks as a plastic fabricator requiring
corrected vision and released him to work with duty limitations. In a report dated August 20,
2012, Dr. Allstadt stated that appellant had a previous history of work restrictions for vision.
She noted that he had occasional right groin pain with certain movements after his surgery for a
right inguinal hernia.
The Board has held that medical evidence lacking an opinion as to the causal relationship
between an appellant’s injury and specified work-related factors is of diminished probative value
on the issue of causal relationship.12 Dr. Pacitti’s July 23, 2012 consent form and July 25, 2012
letter contain diagnoses, but lack opinions as to the causal relationship between those diagnoses
and work-related factors. Dr. Allstadt’s reports contain diagnoses and references to duty
restrictions, but similarly lack rationalized medical opinion on causal relationship. Therefore,
these documents are not sufficient to establish appellant’s claim.
Appellant submitted two reports from Dr. Pacitti containing opinions on the causal
relationship between the right inguinal hernia and work-related factors. In a report dated July 23,
2012, Dr. Pacitti described the history of appellant’s present condition. He stated that appellant
had worked several weeks before with a floor sander, experiencing acute pain in the right
inguinal area and subsequently had marked swelling of the right hemiscrotum. Dr. Pacitti noted
that on further questioning, although the acute episode of the condition was described as only a
few weeks old, appellant noted that he did have some discomfort in the area several months
before. Appellant stated that he had an ultrasound in March 2012, which showed only a left
hydrocele. Dr. Pacitti stated that his assessment was that appellant had a very large right
inguinal hernia. In an attending physician’s report dated July 30, 2012, he checked a box
indicating that appellant’s condition was caused or aggravated by employment activity,
explaining that his right inguinal hernia was preexisting, but aggravated by employment activity.
As noted, appellant must submit medical evidence with a rationalized opinion on the
causal relationship between a diagnosed condition and the identified employment factors. To be
rationalized, the opinion of a 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.13 Dr. Pacitti identified certain
work factors and provided diagnoses, but failed to provide a detailed explanation as to how
specific physical findings supported his opinion on causal relationship. He asserted that
appellant’s condition was caused or aggravated by employment activities, but did not explain
how those activities caused or aggravated the condition. The Board has held that the fact that a
condition manifests itself or worsens during a period of employment14 or that work activities
produce symptoms revelatory of an underlying condition does not raise an inference of causal
12

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

13

Supra note 9.

14

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

relationship between a claimed condition and employment factors.15 Therefore, Dr. Pacitti’s
July 23 and 30, 2012 reports do not establish appellant’s claim for a work-related right inguinal
hernia.
Appellant also submitted documents from a physician’s assistant. Physicians’ assistants
do not qualify as physicians under FECA and, therefore, their reports do not qualify as probative
medical evidence supportive of a claim for federal workers’ compensation, unless such reports
are countersigned by a physician.16 None of the documents from the physician’s assistant
contain a countersignature from a physician. Therefore, they do not qualify as probative medical
evidence supportive of a claim for compensation.
On appeal, appellant asserts that Ms. Nelson directed him to operate a floor stripper with
the knowledge that he was on light duty, and that this would not be within the guidelines for light
duty. While the case record does not contain his specific work restrictions from before July 16,
2012, it appears that these restrictions dealt with vision impairment, and would not prevent him
from performing tasks requiring physical strength and movement such as operation of a floor
stripper. Therefore, it would not violate appellant’s work restrictions for Ms. Nelson to assign
him to perform this task.
As appellant did not submit medical evidence in support of his claim containing a
physician’s rationalized opinion that he developed a right inguinal hernia as a result of identified
employment factors, he has not met his burden of proof to establish causal relationship between
his condition and work-related duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a right inguinal hernia
causally related to factors of his federal employment.

15

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

16

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998).

7

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1141
Issued: January 3, 2019

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 May 15, 2018 appellant, through counsel, filed a timely appeal from a March 29, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral elbow and
left thumb conditions causally related to the accepted July 9, 2016 employment incident.
FACTUAL HISTORY
On July 14, 2016 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on July 9, 2016, he sustained bilateral elbow injuries due to repeated
trauma to both elbows. He first sought medical treatment on July 11, 2016 and notified his
supervisor of his injuries on July 18, 2016.
In support of his claim, appellant submitted medical reports dated July 11, 2016 through
April 12, 2017 documenting treatment at Marshfield Clinic.3
In a July 14, 2016 report, Dr. Adam D. Atkins, Board-certified in family medicine and
sports medicine, reported that he evaluated appellant for complaints of bilateral forearm pain and
noted that appellant had pain in his forearms for a couple of months, but most recently experienced
an intense increase on July 9, 2016 when he was sorting parcels and lifting boxes. Dr. Atkins
noted a history of osteoarthritis and provided physical examination findings. He diagnosed
bilateral forearm pain and medial epicondylitis of the left elbow. Dr. Atkins reviewed an August 4,
2016 left hand x-ray and provided the additional diagnosis of primary osteoarthritis of first
carpometacarpal joint of left hand. In a September 22, 2016 report, he referred appellant for an
electromyography (EMG) study of the bilateral upper extremities due to numbness and tingling in
both hands. Dr. Atkins speculated that his symptoms were more consistent with bilateral carpal
tunnel syndrome (CTS) due to his repetitive work at the employing establishment.
Appellant underwent a bilateral EMG study on September 27, 2016. On October 10, 2016
he was seen by Dr. Edward P. Hayes, a Board-certified orthopedic surgeon, due to complaints of
bilateral wrist pain and numbness. Dr. Hayes reviewed the EMG study, which revealed moderate
left and minimal right CTS. He further reported that appellant’s August 4, 2016 left hand x-ray
revealed moderate basilar thumb arthritis. Dr. Hayes diagnosed median neuropathy, unspecified
laterality, and recommended left hand CTS surgery.
In an April 12, 2017 report, Dr. Atkins reported that appellant presented for a follow-up
evaluation and complained of persistent symptoms at the left medial elbow and base of his left
thumb. He diagnosed primary osteoarthritis of first carpometacarpal joint of left hand, medial
epicondylitis of left elbow, and left CTS.
By development letter dated June 20, 2017, OWCP informed appellant that the evidence
of record was insufficient to support his claim. It advised appellant of the type of medical and
factual evidence needed and was asked to respond to a questionnaire, which sought clarification
on whether he was claiming an occupational disease or traumatic injury based on the definitions

3
The Board notes that the Marshfield Clinic reports included diagnostic studies, as well as nursing and physical
therapy notes.

2

provided. OWCP afforded appellant 30 days to submit the requested evidence. Appellant did not
respond and no other evidence was received.
By decision dated August 3, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the July 9, 2016 employment incident occurred
as alleged.
On August 8, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
In support of his request, appellant submitted an April 10, 2017 narrative medical report
from Dr. Atkins discussing his ongoing treatment. Dr. Atkins reported that he treated appellant
following his July 9, 2016 injury when he was sorting parcels for the employing establishment and
complained of intense forearm pain, left worse than right. Appellant was seen in urgent care
following his initial injury and was referred to him for follow up beginning July 14, 2016.
Dr. Atkins discussed appellant’s treatment visits, physical examination findings, and review of
diagnostic testing. He reported that an August 4, 2016 left hand x-ray revealed severe degenerative
changes. Appellant was diagnosed with left medial epicondylitis and left thumb carpometacarpal
arthritis. On September 22, 2016 he returned for treatment and also complained of numbness and
tingling in both hands, left worse than right. Physical examination findings were positive for
bilateral CTS and appellant was referred for EMG testing of the bilateral extremities on
September 27, 2016. The EMG study revealed moderate left CTS and mild right CTS, and left
hand surgery was recommended. Dr. Atkins opined that, when appellant was sorting parcels, he
definitely experienced forearm pain, which likely was a strain of some muscles causing
inflammation in the forearms. This led to a cascade of events causing some overuse of his left
hand in particular, aggravating his underlying basilar thumb arthritis. Dr. Atkins concluded that
the inflammation in his forearms also likely precipitated his bilateral CTS.
A hearing was held on February 14, 2018, which was attended by appellant and counsel.
Appellant testified in support of his claim and reported that on July 9, 2016 he experienced
increased pain in his forearm and elbow while using his left hand to deliver mail on his route. He
noted no prior upper extremity injuries other than swelling of his forearms when he would sort
mail. Counsel reported that appellant was claiming bilateral epicondylitis and aggravation of left
thumb carpometacarpal arthritis as a result of the July 9, 2016 employment incident when he was
sorting mail and lifting boxes. He further reported that they were not claiming a bilateral CTS
injury at this time. Appellant was advised of the medical evidence needed in support of his claim.
The record was held open for 30 days. Nothing further was received.
By decision dated March 29, 2018, OWCP’s hearing representative affirmed the August 3,
2017 decision, as modified, finding that the evidence of record was insufficient to establish that
the diagnosed medical conditions were causally related to the accepted July 9, 2016 employment
incident.

3

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
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident, which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that appellant has not established bilateral elbow and left thumb conditions
causally related to the accepted July 9, 2016 employment incident.11
4

Supra note 2.

5

See R.E., Docket No. 17-0549 (issued November 13, 2018); see also Gary J. Watling, 52 ECAB 278 (2001).

6

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

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

Id.

9

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

10

James Mack, 43 ECAB 321 (1991).

11

See Robert Broome, 55 ECAB 339 (2004).

4

In support of his claim, appellant submitted medical reports dated July 14, 2016 through
April 12, 2017 from Dr. Atkins, his treating physician. The Board finds that the reports of
Dr. Atkins are not well rationalized and insufficient to establish appellant’s claim. The Board
notes that Dr. Atkins diagnosed bilateral CTS, left medial epicondylitis, and aggravation of left
thumb carpometacarpal arthritis. During the February 14, 2018 hearing, counsel asserted that
appellant was not claiming a bilateral CTS injury related to the July 9, 2016 traumatic incident.
As such, the Board will not discuss this condition on appeal. With respect to the claimed
conditions, the Board notes that the medical evidence of record fails to establish a diagnosed
medical condition of right epicondylitis. Dr. Atkins failed to provide a firm medical diagnosis
pertaining to the right upper extremity as he only diagnosed right forearm pain. The Board has
consistently held that pain is a symptom, not a compensable medical diagnosis.12
With respect to the left upper extremity conditions, Dr. Atkins provided a firm medical
diagnosis of left medial epicondylitis and left thumb carpometacarpal arthritis.13 However, he
failed to provide a fully rationalized opinion that appellant’s left upper extremity conditions were
causally related to the July 9, 2016 employment incident. Dr. Atkins acknowledged that appellant
had preexisting forearm pain, which was exacerbated on July 9, 2016 when he was sorting parcels
and lifting boxes. He reported that, when sorting parcels, appellant experienced forearm pain,
which was likely a strain of some muscles causing inflammation in the forearms. The Board notes
that Dr. Atkins’ opinion on causation is highly speculative and couched in equivocal terms. To be
of probative value, a physician’s opinion on causal relationship should be one of reasonable
medical certainty.14 Dr. Atkins’ explanation failed to provide specific details pertaining to the
mechanism of injury, only generally noting that appellant likely strained his forearm, which led to
a cascade of events causing an aggravation of his underlying basilar thumb arthritis. While
Dr. Atkins had some understanding of the July 9, 2016 employment incident, his statement on
causation failed to provide a sufficient explanation as to the mechanism of injury pertaining to this
traumatic injury claim, namely, how the repetitive movements of sorting and delivering mail on
July 9, 2016 would cause or aggravate appellant’s bilateral upper extremity conditions.15
The Board further notes that Dr. Atkins reported that appellant had prior pain in his
forearms for a couple of months, but most recently experienced an intense increase on July 9, 2016
when he was sorting parcels and lifting boxes. Dr. Atkins further noted that an August 4, 2016
x-ray of the left hand revealed severe degenerative changes. He failed to provide a thorough
discussion of appellant’s medical history when asserting a July 9, 2016 work injury as the record
reflects forearm complaints, which predate the traumatic incident, as well as a preexisting
degenerative left hand condition. Moreover, Dr. Atkins failed to discuss whether appellant’s
preexisting injury had progressed beyond what might be expected from the natural progression of

12
See K.V, Docket No. 18-0723 (issued November 9, 2018 (regarding pain); J.S., Docket No. 07-0881 (issued
August 1, 2007) (regarding spasm).
13

C.F., Docket No. 08-1102 (issued October 10, 2008).

14

See Beverly R. Jones, 55 ECAB 411 (2004).

15

S.W., Docket 08-2538 (issued May 21, 2009).

5

that condition.16 A well-rationalized opinion is particularly warranted when there is a history of a
preexisting condition.17 It remains unclear if appellant’s left upper extremity issues were caused
or aggravated by the July 9, 2016 employment incident, a result of a preexisting condition, or due
to degenerative changes. As such, Dr. Atkins’ reports are insufficient to meet appellant’s burden
of proof.
The report from Dr. Hayes is also insufficient to establish appellant’s claim as he provided
medical diagnoses with no opinion on the cause of injury. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of no
probative value.18 Any medical opinion evidence appellant may submit to support his claim should
reflect a correct history and offer a medically-sound explanation by the physician of how the
specific employment incident, in particular physiologically, caused or aggravated his injury.19
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s left medial epicondylitis and left thumb carpometacarpal arthritis
and the accepted July 9, 2016 employment incident. The nursing and physical therapy notes from
Marshfield Clinic are of no probative value as registered nurses and physical therapists are not
physicians as defined under FECA.20
As the evidence of record lacks rationalized medical evidence establishing causal
relationship between the accepted July 9, 2016 employment incident and appellant’s left
epicondylitis and left thumb carpometacarpal arthritis, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(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 bilateral elbow
and left thumb conditions causally related to the accepted July 9, 2016 employment incident.

16

A.H., Docket No. 18-0722 (issued November 6, 2018).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).
18

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

19

Id.

5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
20

6

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2019
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

7