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

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

Docket No. 10-2242
Issued: July 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from a March 31, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 sustained a cervical or lumbar condition are causally
related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In an October 5, 2009 decision, the
Board set aside a September 26, 2008 OWCP decision denying appellant’s occupational disease

1

5 U.S.C. § 8101 et seq.

claim.2 The Board noted that OWCP accepted that she sustained a herniated cervical disc,
lumbar sprain and spondylosis due to an August 11, 1977 employment injury, cervical strain due
to a July 25, 1979 employment injury and lumbar sprain due to an April 18, 1990 employment
injury. On March 5, 2003 appellant underwent an anterior cervical fusion at C3-4, C4-5 and C56 and on October 8, 2003 she underwent surgery for tethered cord syndrome. She filed an
occupational disease claim in 2005 alleging that she sustained an injury to her spine while
moving heavy volumes of mail and checking on employees at various locations. Dr. Sean
Salehi, a Board-certified neurosurgeon and impartial medical examiner, advised that appellant
sustained a herniated disc at C6-7 due to her August 11, 1977 work injury that was treated
appropriately in 1977 with a cervical fusion. He determined that her subsequent cervical
discectomy, lumbar laminectomy and tethered cord release were not related to her 1977
employment injury unless the August 31, 1977 myelogram showed significant stenosis at C4-5
that was not properly resolved surgically. Dr. Salehi stated that the myelogram showed
“complete cut off of the dye at C4-5” due to either in incomplete concentration of contrast or
significant stenosis. He related that he could resolve the issue by reviewing the actual
August 1977 cervical myelogram. The Board found that Dr. Salehi’s opinion was insufficient to
resolve the conflict in medical opinion. The Board remanded the case for OWCP to combine the
case record of appellant’s lumbar and cervical injures, obtain a copy of the August 31, 1977
cervical myelogram and request a supplemental report from Dr. Salehi regarding the cause of her
current cervical and lumbar conditions and resulting surgeries. The facts and circumstances of
the case as set forth in the Board’s prior decision are hereby incorporated by reference.
On October 27, 2009 OWCP requested that appellant submit a copy of the August 31,
1977 cervical myelogram. On December 1, 2009 it informed Dr. Salehi that it did not have a
copy of the August 31, 1977 myelogram. OWCP requested that Dr. Salehi address, if possible,
the most likely cause of the dye cut-off seen on cervical myelogram. In a December 10, 2009
response, Dr. Salehi advised that he was unable to identify the cause of the dye cut-off without
review of the myelogram.
On January 25, 2010 the Office referred appellant to Dr. Robert A. Beatty, a Boardcertified neurosurgeon, for an impartial medical examination. In a report dated March 2, 2010,
Dr. Beatty reviewed the medical evidence and discussed appellant’s current complaints of
intermittent numbness of the leg, a spastic walk, lumbar pain radiating down her legs into her
feet and neck pain radiating into her shoulders. On physical examination, he found an absent of
deep tendon reflexes in the biceps but no shoulder atrophy. Dr. Beatty opined that the
“brachioradialis reflexes on each side produced clenching of the hands, a significant sign of
cervical cord compression.” He found no Hoffmann’s sign and intact sensation of the ankles.
Dr. Beatty further found no ankle reflex and hypesthesia over the feet, ankles and hands. He
reviewed the diagnostic studies, including a November 13, 2003 lumbar myelogram that showed
degenerative changes and a December 30, 2002 cervical magnetic resonance imaging (MRI)
scan study, that revealed compression of the cervical spinal cord at C5-6 and degenerative
changes. Dr. Beatty found that appellant “had a herniated disc at C6-7 in 1977 and achieved
2

Docket No. 09-669 (issued October 5, 2009). On June 15, 2005 appellant, then a 61-year-old business mail
supervisor, filed an occupational disease claim alleging that she injured her spine moving heavy mail volumes. At
the time of her injury, she worked four hours a day.

2

solid fusion.” He noted that a March 1987 myelogram did not show cord compression but did
reveal some mild C5-6 ridging. A 1986 MRI scan study showed a disc protrusion at C5-6 but no
cord compression. Dr. Beatty further advised that the report from appellant’s 2003 surgery did
not refer to a herniated disc at any of the three treated levels. He related:
“My opinion regarding the cervical spine is that over this period of time between
1977 and 2003 when [appellant] had the anterior cervical fusion, she had the
normal progression of degenerative disc disease in the neck and also in the lumbar
spine.
“I do not see any connection between any current medical condition and any work
incident or factor in [appellant’s] employment between her injury of 1977 and the
present. I also do not see any medical connection between [her] current medical
condition and surgery residual from any procedures authorized by [OWCP] based
on what has been stated above. It is true that at the present time, [appellant] has
evidence, unrelated to the original herniated disc at C6-7 or any work conditions
since 1977, of cervical cord compression with hyperactive reflexes and clenching
of the hands with the brachioradialis reflexes.”
Dr. Beatty attributed appellant’s tethered clonus to a congenital defect unrelated to a work injury.
He found that the cervical spine surgery on March 5, 2003 was not due to her employment.
Dr. Beatty stated, “I would repeat my opinion stated earlier that [appellant] did have genuine
ridging of the cervical spinal canal and narrowing of the canal, especially at C5-6 with cord
compression, but I am not able to connect this degenerative finding to any injury or factor of her
employment.” He concluded that her current symptoms were due to a “natural progression of
cervical and lumbar degenerative disease and, in the absence of any significant work injuries,
that [her] work activities did not worsen, aggravated or accelerate the cervical or lumbar spine
degenerative disease.” In a February 24, 2010 work restriction evaluation, Dr. Beatty found that
appellant was totally disabled.
By decision dated March 31, 2010, OWCP denied appellant’s occupational disease
claim.3
On appeal, appellant asserted that delays by OWCP in approving treatment worsened her
condition and resulted in additional surgery.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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
3

OWCP indicated that it was denying modification of its prior decision; however, the Board set aside the prior
OWCP decision on appeal.
4

5 U.S.C. §§ 8101-8193.

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disability and/or specific condition for which compensation is claimed are 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 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;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing 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.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or OWCP medical adviser, OWCP shall appoint a
third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12
ANALYSIS
Appellant contended that she sustained a spinal injury as a result of moving heavy mail
volumes and checking on employees in various locations during the course of her federal
employment. In a prior appeal, the Board determined that the report from the impartial medical
examiner, Dr. Salehi, was insufficient to resolve a conflict in medical opinion regarding whether
she sustained an occupational injury to her spine and whether her surgeries in 2003 were related
5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

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

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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to her employment. The Board noted that OWCP had previously accepted that appellant
sustained a herniated cervical disc, lumbar sprain and spondylosis as a result of an August 11,
1977 work injury, employment-related cervical strain on July 25, 1979 and a lumbar sprain on
April 18, 1990. Dr. Salehi advised that appellant’s need for a cervical disectomoy and fusion in
2003 and the release of the tethered cord resulted from a progressive, degenerative condition
rather than a work injury. He further noted, however, that a 1977 cervical myeologram showed
that dye was cut off at C4-5 and requested review of the myelogram to determine whether she
had a herniation at that level. The Board remanded the case for OWCP to obtain a supplemental
report from Dr. Salehi after his review of the 1977 myelogram and the evidence from all of
appellant’s work injuries.
OWCP could not obtain a copy of the 1977 myelogram. Dr. Salehi advised that he was
unable to provide further clarification without the myelogram. Therefore, OWCP properly
referred appellant for a second impartial medical examination.13
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.14 The Board finds that the
opinion of Dr. Beatty, a Board-certified neurosurgeon selected to resolve the conflict in opinion,
is well rationalized and based on a proper factual and medical history. Dr. Beatty reviewed
appellant’s medical and work history, including the operative reports and diagnostic studies. He
diagnosed cervical and lumbar degenerative disc disease with cord compression of the cervical
spine. Dr. Beatty found that appellant’s current medical condition was unrelated to her work
duties or 1977 injury. He asserted that between 1977 and the time of her cervical fusion in 2003
she experienced “the normal progression of degenerative disc disease in the neck and also in the
lumbar spine.” Dr. Beatty provided rationale for his opinion by explaining that the diagnostic
studies and 2003 operative report did not show a herniated disc and that the ridging and
narrowing of the cervical spine with cervical cord compression at C5-6 was due to degeneration.
He further related that the surgery for the tethered clonus was a congenital defect unrelated to
appellant’s employment. As Dr. Beatty’s report is detailed, reasoned and based on a proper
factual background, his opinion is entitled to the special weight accorded the impartial medical
examiner.15 OWCP, consequently, properly denied appellant’s occupational disease claim.
On appeal, appellant maintains that her condition worsened due to OWCP’s failure to
promptly approve treatment. The issue, however, is whether she has established that she
sustained an occupational disease of the cervical or lumbar spine due to factors of her federal
employment. The issue of causal relationship is a medical one and must be resolved by

13

In situations where OWCP secures an opinion from an impartial medical specialist for the purpose of resolving
a conflict in the medical evidence and the opinion from such specialist requires clarification or elaboration, OWCP
has the responsibility to secure a supplemental report from the specialist for the purpose of correcting the defect in
the original opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case
should be referred to another appropriate impartial medical specialist. See Guiseppe Aversa, 55 ECAB 164 (2003).
14

See David W. Pickett, supra note 12.

15

Id.

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probative medical evidence.16 Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128 (a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a cervical or lumbar
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 31, 2010 is affirmed.
Issued: July 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Luis M. Villanueva, 54 ECAB 666 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washougal, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0960
Issued: January 29, 2019

Case Submitted on the Record

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

JURISDICTION
On April 9, 2018 appellant, through counsel, filed a timely appeal from a February 20,
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.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.

The Board notes that by a November 11, 2017 decision, OWCP granted appellant a schedule award for six percent
permanent impairment of the right upper extremity. As appellant has not appealed from the November 11, 2017
OWCP decision, it is not properly before the Board for review. See 20 C.F.R. § 501.3.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation pursuant to 20 C.F.R. § 10.500(a).
FACTUAL HISTORY
On December 7, 2015 appellant, then a 55-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she injured her right upper extremity due to excessive use
while in the performance of duty. She stopped work on December 3, 2015.
OWCP initially denied the claim on April 7, 2016 as appellant had not established the
alleged employment factors. In correspondence dated January 6, 2017, received by OWCP on
January 9, 2017, appellant, through counsel, requested a hearing with OWCP’s Branch of Hearings
and Review.4 By decision dated February 2, 2017, an OWCP hearing representative denied the
hearing request because it was untimely filed, noting that the issue could equally be addressed by
requesting reconsideration with OWCP.
On April 3, 2017 appellant, through counsel, requested reconsideration. In a duty status
report (Form CA-17) dated March 9, 2017, Dr. David J. Hagen, a Board-certified family
physician, advised that appellant could return to work in a modified position. He provided
restrictions of lifting and carrying five pounds for two hours daily, kneeling, bending, stooping,
simple grasping, and fine manipulation to four hours daily, driving a vehicle to two hours daily,
and no climbing, pulling, pushing, or reaching above the shoulder.
By decision dated June 21, 2017, OWCP found the evidence submitted sufficient to
warrant modification and vacated the April 7, 2016 decision.5 It accepted tenosynovitis of the
right shoulder, medial epicondylitis of the right elbow, and infective tenosynovitis of the right
wrist.
Appellant thereafter submitted claims for compensation (Form CA-7) for the period
December 20, 2015 to February 19, 2016, March 7 to May 25, 2016, and May 26, 2016 to
June 25, 2017. She also forwarded a June 12, 2017 letter from the Office of Personnel
Management (OPM) indicating that her disability retirement application had been approved.
In duty status reports dated April 11 and June 30, 2017, Dr. Hagen repeated his restrictions.
Appellant telephoned OWCP, indicating that she was electing disability retirement effective
May 26, 2016. OWCP paid appellant supplemental rolls wage-loss compensation from
December 20, 2015 to February 19, 2016, and March 7 to May 25, 2016.

4
Counsel attached a hearing request dated April 18, 2016. There is no record of its receipt by OWCP prior to
January 9, 2017.
5

The record indicates that under OWCP File No. xxxxxx007 OWCP accepted right radial styloid tenosynovitis and
right shoulder tendinitis, and that under that claim appellant returned to full duties in July 2013. In a February 21,
2017 decision, under that claim, an OWCP hearing representative denied appellant’s claim for recurrent disability.
He noted that she had filed the instant claim, adjudicated under OWCP File No. xxxxxx464.

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On July 6, 2017 the employing establishment offered appellant a modified rural carrier
assignment. The duties were: case labels for 1 hour; Redbook and WebEES for 30 minutes to 2
hours; pull weeds and trim bushes for 4 to 6 hours; and sweep sidewalks and rake for 1 to 2 hours.
The physical requirements included: standing, walking, and twisting 8 hours intermittently;
kneeling, bending, and stooping 2 to 4 hours intermittently; simple grasping 0 to 4 hours
intermittently; and fine manipulation 30 minutes to 2 hours. The effective/available date was
July 8, 2017.
Appellant telephoned OWCP on July 10, 2017, indicating that she had retired. An
employing establishment notice of separation and notification of personnel action processed on
July 10, 2017 indicated that appellant retired on OPM disability effective June 26, 2017.
By letter dated July 10, 2017, counsel maintained that the job offer was unacceptable
because appellant did not have the physical ability to pull weeds, trim bushes, sweep, and rake.
On July 17, 2017 OWCP paid appellant compensation on the supplemental rolls for the
period May 26, 2016 through June 23, 2017.
In a treatment note dated June 30, 2017, received by OWCP on July 18, 2017, Dr. Hagen
noted that appellant’s right upper extremity pain remained problematic and that she could not use
her right arm for any repetitive motion or activity above the chest level. Following physical
examination, he diagnosed tenosynovitis of the right shoulder which disabled her from the rural
carrier job, medial epicondylitis of the right elbow, aggravated by gripping, and tenosynovitis of
the right wrist. Dr. Hagen advised that appellant was totally disabled from the rural mail carrier
position.
In a notice dated August 7, 2017, OWCP proposed to terminate appellant’s wage-loss
compensation.6 It advised her that it had reviewed the work restrictions provided by Dr. Hagen on
June 30, 2017 and determined that the modified rural carrier position offered appellant was within
her restrictions. OWCP informed appellant of the provisions of 20 C.F.R. § 10.500(a) and advised
her that her entitlement to wage-loss compensation would be terminated under this provision if she
did not accept the offered temporary assignment or provide a written explanation with justification
for her refusal within 30 days. It noted that upon acceptance, as appellant’s pay would be equal to
or greater than the current pay of the job held when injured, she would have sustained no wage
loss if she had accepted the position.
Dr. Hagen forwarded treatment notes dated July 25 and August 7, 2017 in which he
described physical examination findings, reiterated his diagnoses, and noted that appellant was
permanently disabled from her job. On a work capacity evaluation (Form OWCP-5c) dated
July 25, 2017, Dr. Hagen again provided physical limitations with a 10-pound lifting restriction
for 2 hours daily. He continued to advise that appellant could not push, pull, or reach above the
shoulder.

6
The notice was initially sent on July 17, 2017, but as it was not forwarded to counsel, it was resent on
August 7, 2017.

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By decision dated September 11, 2017, OWCP terminated appellant’s wage-loss
compensation in accordance with 20 C.F.R. § 10.500(a), effective September 8, 2017. It noted
that she had not accepted the temporary modified position which was found to be within
Dr. Hagen’s restrictions.
In a request postmarked September 19, 2017, appellant requested a review of the written
record by a representative of OWCP’s Branch of Hearings and Review. She resubmitted the
July 25, 2017 work capacity evaluation completed by Dr. Hagen.
By decision dated February 20, 2018, an OWCP hearing representative affirmed the
September 11, 2017 decision that terminated appellant’s wage-loss compensation pursuant to 20
C.F.R. § 10.500(a). She found that the offered position was within Dr. Hagen’s restrictions, and
that appellant had been afforded 30 days to accept the position. The hearing representative
concluded that, as OWCP complied with the provisions of section 10.500(a) of its regulations, it
properly terminated appellant’s wage-loss compensation effective September 8, 2017.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits.7
OWCP regulations at 20 C.F.R. § 10.500(a) provides:
“Benefits are available only while the effects of a work-related condition continue.
Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents him or her
from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for any wage-loss claimed on a CA-7 to
the extent that evidence contemporaneous with the period claimed on a CA-7
establishes that an employee had medical work restrictions in place; that light duty
within those restrictions was available; and that the employee was previously
notified in writing that such duty was available…. (The penalty provision of 5
U.S.C. § 8106(c)(2) will not be imposed on such assignments under this
paragraph.)”
When it is determined that an employee is no longer totally disabled from work and is not
on the periodic rolls, OWCP procedures provide that the claims examiner should determine
whether light-duty work is available within the employee’s medical restrictions during the period
for which compensation is claimed and a development letter should be sent to appellant setting
forth the standards under section 10.500(a) including medical evidence required to establish a
claim for wage-loss compensation. The claims examiner should also obtain documentation from
the employing establishment that written notification of light-duty work availability was provided

7

S.V., Docket No. 17-1268 (issued March 23, 2018); I.J., 58 ECAB 408 (2008).

4

to the employee, if not already in the file.8 The claims examiner, when adjudicating the claim for
wage-loss compensation, must also determine whether the evidence of record establishes that the
employee was provided with written notification of a light-duty job assignment, that the job was
within the employee’s restrictions, and that the job was available to the employee during the period
wage-loss compensation was claimed.9
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation under section 20 C.F.R. § 10.500(a).
The Board finds that appellant filed claims for compensation (Form CA-7) and received
compensation on the supplemental rolls through June 23, 2017. No additional claims for
compensation were filed. The Board further finds that OWCP had not made a determination as to
appellant’s loss of wage-earning capacity (LWEC). As of June 25, 2017 appellant commenced
receipt of OPM retirement benefits and no longer sought benefits under FECA. As appellant was
not on the periodic rolls, nor was there an LWEC determination in place, OWCP erred in invoking
the termination provisions of 20 C.F.R. § 10.500(a).
Should appellant file a proper election form and choose to return to FECA compensation
by filing a claim for compensation, and she returns to the periodic compensation rolls, OWCP may
request that the employing establishment offer appellant a light-duty employment position and
then invoke the provisions of section 10.500(a).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation pursuant to 20 C.F.R. § 10.500(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(b)(2)
(June 2013).
9

Id.; see also Chapter 2.814.9(b)(3) (June 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 29, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OFFICE OF ACQUISITION & MATERIEL
MANAGEMENT, Washington, DC, Employer
__________________________________________

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

Docket No. 07-139
Issued: May 22, 2007

Oral Argument May 1, 2007

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

JURISDICTION
On October 19, 2006 appellant filed a timely appeal from the April 26 and August 23,
2006 merit decisions of the Office of Workers’ Compensation Programs, which denied her claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of her claim.
ISSUE
The issue is whether appellant’s diagnosed condition is causally related to the accepted
factors of her federal employment.
FACTUAL HISTORY
On December 12, 2005 appellant, then a 61-year-old contract specialist, filed an
occupational disease claim alleging that her severe anxiety and depression, recurring chest pain,
uncontrollable migraines and hypertension were a result of her federal employment: “Current
medical conditions have been diagnosed by Dr. Cheryl Jackson as being induced by a highly

stressful work environment, which resulted in reoccurring (sic) [emergency room] visits for chest
pain and migraines.”
On January 26, 2006 the Office asked appellant to submit evidence to support her claim,
including a detailed description of the employment conditions or incidents to which she
attributed her condition and her doctor’s reasoned medical opinion on the cause of her condition.
In a decision dated April 26, 2006, the Office denied appellant’s claim for compensation.
Noting that she had submitted no further evidence to support her claim, the Office found that she
failed to establish that she sustained an injury.
Appellant requested reconsideration. She explained that her office was short of personnel
since the day she arrived in December 1998. Appellant cited a study attributing the turnover in
personnel to a high workload. The workload weighed heavily on everyone in the division, she
stated. Appellant had 58 projects herself to administer and award at one time. She stated that
her panic attacks started in 2000 with migraines and trembling. Appellant noticed that the
condition occurred when she attempted to prioritize her daily workload and “someone from a
higher executive office required me to forget my workload plans and adjust to his or her
prioritized schedule of projects to be completed.” It was at that time her symptoms began to
increase in intensity and frequency. Appellant also acknowledged stresses outside the
workplace, including her mother’s death and her son’s illness.
Appellant submitted statements from others who attested to the employing
establishment’s stressful work environment. She submitted blood pressure readings, treatment
notes, encounter forms, daily progress notes from outpatient therapy sessions and multidisciplinary weekly reviews of her individual treatment plan.
Appellant submitted a report from Dr. Robert G. Cumming, a Board-certified
psychiatrist. On October 21, 2005 Dr. Cumming reported that appellant experienced “job
stressors”: “She indicates that she works in the [employing establishment] in the District of
Columbia and has not been able to continue work there for some time because of the stressors.”
Dr. Cumming gave a principal diagnosis of recurrent major depression. He referred appellant to
a partial hospitalization program to assess whether she could receive a more substantial level of
care to manage her depressive symptomatology.
On June 23, 2006 a supervisory contract specialist addressed appellant’s allegation of job
stress and staffing shortages:
“A certain amount of stress is part of being a 1102 professional at any level. This
fact is well known throughout federal acquisitions. All employees, including
[appellant], were required to work overtime, meet deadlines, etc. I am not aware
of any conflicts between [her] and other coworkers or supervisors. [Her]

2

assignments and workload were consistent with a contracting officer at the GS-14
level.”
***
“Throughout the federal acquisition community, recruiting and maintaining staff
continues to be a challenge. We did have vacancies within the organization and
all employees under my authority had a heavy workload when [appellant] was in
the office.”
In a decision dated August 23, 2006, the Office reviewed the merits of appellant’s claim
and denied benefits. The Office found that the factual evidence established the alleged staffing
shortages and aspects of appellant’s job that could be perceived as stressful. The Office noted,
however, that the medical evidence offered no rationalized opinion on how these employment
factors caused appellant’s diagnosed medical conditions: “The evidence submitted merely
indicates the claimant has diagnosed psychological conditions but fails to opine if/how these
psychological conditions are causally related to specific factors of employment.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of duty.1
An employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 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 factors of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty5

1

5 U.S.C. § 8102(a).

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton,
40 ECAB 1143 (1989).
3

Mary J. Briggs, 37 ECAB 578 (1986).

4

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

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

3

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.6
ANALYSIS
Appellant has established that she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. The employing establishment confirmed
that appellant was required to work overtime and meet deadlines. Further, the employing
establishment confirmed that recruiting and maintaining staff was a challenge. Vacancies
existed and all employees had a heavy workload.
The question that remains is whether these specific employment factors caused an injury.
This is where appellant’s claim falls short. The record that was before the Office when it issued
its most recent decision on August 23, 2006 contains no narrative report from a physician who
explains how appellant’s diagnosed condition is related to these specific employment factors.
There is no report of an attending physician which describes the accepted employment factors
(staff shortages, deadlines, overtime, heavy workload) in detail sufficient to show that he or she
is basing the opinion on an accurate factual background. The physician should also describe any
significant stresses outside the workplace. It is not sufficient for Dr. Cumming, the psychiatrist,
to report that appellant experienced “job stressors.” That does not demonstrate an understanding
of appellant’s workplace. Dr. Cumming must also explain from a medical or psychiatric
perspective how these particular stressors caused, aggravated or contributed to a diagnosed
condition. While he diagnosed recurrent major depression, he did not address how this was
related to appellant’s accepted work condition. Dr. Cumming must explain why he or she
believes that such a causal connection exists in this particular case. The evidence from
Dr. Jackson does not provide any narrative opinion on causal relationship. An award of
compensation may not be based on surmise, conjecture or the claimant’s own belief of causal
relationship.7 Appellant must submit medical evidence explaining how her employment factors,
first arising in 1998, caused or contributed to her disability as of September 2005.
Appellant submitted numerous treatment and progress notes showing her complaints and
symptoms and treatment; but this evidence does not address the element of causal relationship.
None of this evidence presents a physician’s opinion together with sound reasoning.
Dr. Cumming offered a psychiatric evaluation on October 21, 2005, but he did not state whether
he believed that appellant’s recurrent major depression was a result of the overtime, deadlines,
staff shortages and heavy workload found in her federal employment. His report, therefore, is of
limited probative value in establishing causal relationship.
Appellant submitted insufficient medical opinion explaining how specific employment
factors caused or aggravated her claimed condition. She has not met her burden of proof to

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

See John D. Jackson, 55 ECAB 465 (2004).

4

establish the essential elements of her claim.
decisions denying benefits.8

The Board will therefore affirm the Office

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish the essential
element of causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the August 23 and April 26, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 22, 2007
Washington, DC

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

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

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

8

Appellant has one year from the date of the Board’s decision to submit additional evidence to the Office and
request, in writing, that the Office reconsider its August 23, 2006 decision on the issue of causal relationship.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
MINNEAPOLIS VA MEDICAL CENTER,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 21-1159
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On June 7, 2021 appellant, through counsel, filed a timely appeal from a May 26, 2021
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.

1

ISSUE
The issue is whether appellant has met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
FACTUAL HISTORY
On March 4, 2020 appellant, then a 48-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 2, 2020 he was maneuvering a cart, which was difficult
to push and steer, when he experienced a shooting pain from his elbow to his fingers, while in the
performance of duty. He stopped work on March 2, 2020 and returned to work on March 4, 2020.
On the reverse side of the claim form appellant’s supervisor acknowledged that appellant was
injured while in the performance of duty.
Appellant submitted a form dated March 6, 2020 from Dr. Fardows Omar Salim, a family
medicine specialist, who noted a March 2, 2020 date of injury and provided work restrictions.
OWCP also received an imaging report dated March 10, 2020 from Dr. Kyle Shipley, a
Board-certified diagnostic radiologist, which related an impression of mild distal biceps and
common extensor tendinopathy.
Appellant submitted a work capacity form dated March 11, 2020 from Dr. Elizabeth
Moorhead, a Board-certified internist. Dr. Moorhead related that appellant was injured on
March 2, 2020 and diagnosed right ulnar neuropathy and right lateral epicondylitis. He noted
appellant’s work restrictions and limited him to four hours of work a day.
In a development letter dated March 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It informed him of the type of factual and medical evidence needed and
provided him with a questionnaire. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted a medical report dated March 4, 2020 from Dr. Salim.
Dr. Salim related that appellant was pushing and steering a crash cart with bad wheels at work and
reinjured his right elbow. She related that appellant had previously injured the same elbow at work
in April 2019 when he struck his elbow on metal shelving.3 Dr. Salim provided an assessment of
right elbow pain and noted that there concern regarding a fracture versus a nerve injury; therefore,
appellant would undergo an x-ray and magnetic resonance imaging (MRI) scan.
By decision dated May 6, 2020, OWCP accepted that the March 2, 2020 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that he had not
submitted medical evidence containing a medical diagnosis in connection with his accepted

3

Appellant has a prior claim under OWCP File No. xxxxxx929 alleging that on April 11, 2019 he was stocking a
storeroom, lifting heavy boxes and putting them on shelves, when he struck his elbow against the metal shelves.
OWCP denied that claim by decisions dated August 29 and December 17, 2019. Appellant’s claims have not been
administratively combined by OWCP.

2

employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 13, 2021 appellant, through counsel, requested reconsideration of OWCP’s
May 6, 2020.
In a letter dated March 30, 2021, Dr. Moorhead related that, on April 11, 2019, appellant
was carrying boxes when he struck the posterior side of his elbow on a shelf. She noted that an
electromyogram (EMG) performed on September 3, 2019 showed a mild right ulnar sensory
mononeuropathy, and an MRI scan performed on December 9, 2019 showed mild lateral
epicondylitis. Dr. Moorhead diagnosed lateral epicondylitis, ulnar neuropathy, and right elbow
pain.
By decision dated May 26, 2021, OWCP modified its May 6, 2020 decision and found that
appellant had established a diagnosed medical condition, but denied appellant’s claim as causal
relationship had not been established between the diagnosed right elbow condition and the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 5 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. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury. 8

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

3

The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 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 must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the accepted March 2, 2020 employment incident.
Appellant was initially seen by Dr. Salim on March 4, 2020 who related appellant’s history
of the alleged March 2, 2020 injury, and noted that appellant had previously injured his right elbow
at work in April 2019 when he struck his elbow on metal shelving. Dr. Salim assessed right elbow
pain. The Board has held that pain is a description of a symptom, not a firm diagnosis of a medical
condition.11 Moreover, Dr. Salim did not provide an opinion with regard to causal relationship.
In a form report dated March 6, 2021, she noted appellant’s work restrictions, but again did not
provide a firm diagnosis or an opinion regarding causal relationship. The Board has held that a
medical report lacking a firm diagnosis or an opinion on causal relationship is of no probative
value.12 As such, these reports are insufficient to meet appellant’s burden of proof.
In a report dated March 11, 2020, Dr. Moorhead related that appellant was injured on
March 2, 2020. She diagnosed right ulnar neuropathy and right lateral epicondylitis. However,
Dr. Moorhead merely repeated the history of injury as reported by appellant without providing her
own opinion regarding whether appellant’s condition was work related. OWCP also received a
March 30, 2021 report wherein Dr. Moorhead related that on April 11, 2019 appellant was
carrying boxes when he struck the posterior side of his elbow on a shelf. Dr. Moorhead related
diagnoses of lateral epicondylitis, ulnar neuropathy, but did not provide an opinion on causal
relationship. As noted, the Board has held that a medical report lacking an opinion on causal
relationship is of no probative value. 13 As such, this evidence is also insufficient to establish the
claim.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).

12

See J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

Id.

4

Appellant also submitted diagnostic studies. The Board has long held that diagnostic
studies, standing alone, lack probative value on the issue of causal relationship as they do not
address whether the employment incident caused a diagnosed condition. 14
As the medical evidence of record is insufficient to establish causal relationship between a
diagnosed right elbow condition and the accepted employment incident, the Board finds that
appellant has not met 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. 15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right elbow
condition causally related to the March 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

14

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

15

Upon return of the case record, OWCP should consider administratively combining this case record with the prior
record for OWCP File No. xxxxxx929.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 21-0968
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 2021 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 her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. 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 November 30, 2020 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2020 she injured her right hand/wrist
when a large parcel slipped from her hand and caused her hand to bend backward while in the
performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that her injury had occurred in the performance of duty. It also indicated that
appellant had previously sustained a nonoccupational hand injury. Appellant stopped work on the
date of injury.
In a November 23, 2020 statement, appellant noted that she injured her right hand at work
earlier that day when she was lifting a large box off of a skid, which was at least two feet off the
floor. She explained that the box slipped from her hand, causing her hand to bend backward, which
caused pain in her wrist. Appellant noted that she yelled out in pain and that her supervisor came
to check on her. She indicated that she drafted a statement that would be seeking medical attention.
In a separate statement of even date, appellant noted that when she was lifting a large parcel, it
slipped and injured her right wrist.
In an undated witness statement, C.D., appellant’s supervisor, noted that, on November 23,
2020 at approximately 6:30 p.m., she saw appellant return to the office with a large parcel on a
skid. She stated that she witnessed appellant yell out in pain and saw the parcel was no longer on
the skid. C.D. asserted that appellant was holding her arm and notified her that she had tried
moving the parcel to the floor when it slipped out of her hands and hurt her right wrist. Appellant
also informed C.D. that she previously had surgery on the same wrist, which was the reason why
she was currently on restrictions. C.D. noted that a coworker helped appellant write her statement
before she signed it.
On November 23, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a November 24, 2020 medical report, Dr. Paul Saccone, a cosmetic, plastic, and
reconstructive surgeon, reported that a heavy box slipped onto appellant’s right hand and wrist,
and bent them backward at work on November 23, 2020. Appellant complained that she
experienced pain in her wrist when she moved it. Dr. Saccone conducted a physical examination
and diagnosed a right wrist sprain. He noted that her right hand and wrist showed some mild
swelling, but no ecchymosis. Dr. Saccone also noted that appellant had decreased flexion and
extension of her wrist. He indicated that she previously underwent a carpal tunnel release on
September 24, 2018. In a disability certification of even date, Dr. Saccone noted that appellant
was totally incapacitated and required an x-ray to further determine the extent of her injury.
A November 25, 2020 x-ray of the right wrist revealed no fracture or dislocation. In an
attending physician’s report, Part B of the Form CA-16, also dated November 25, 2020,
Dr. Saccone again noted that a heavy box slipped onto appellant’s right hand and wrist, bending
them backward, at work on November 23, 2020. He reported that her right wrist was swelling
with decreased flexion and extension. Dr. Saccone diagnosed right wrist sprain and checked a box
marked “Yes,” indicating that appellant’s condition was caused or aggravated by the described
employment activity. He indicated that she was unable to work.

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
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,
3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

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 if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); 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

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

condition was caused or aggravated by an employment activity. The Board has held that a report
that addresses causal relationship with a checkmark, without medical rationale explaining how the
employment incident caused the alleged injury, is of diminished probative value and insufficient
to establish causal relationship. 14 Dr. Saccone did not provide any rationale in support of his
opinion. This report is, therefore, of diminished probative value and insufficient to establish
appellant’s claim.
In medical reports dated November 24, and December 1 and 15, 2020, and January 8 and
February 5, 2021, Dr. Saccone reported that a heavy box slipped onto appellant’s right hand and
wrist, bending it backward, at work on November 23, 2020. He conducted a physical examination
and consistently diagnosed a right wrist sprain. Similarly, in his December 15, 2020 prescription
slip, he diagnosed a right wrist sprain. However, Dr. Saccone did not address causation in his
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
Moreover, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part, and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases. 16 For these reasons, these reports are insufficient to establish appellant’s
claim.
OWCP received disability certifications and prescription slips from Dr. Saccone dated
November 24 and December 1, 2020, and January 8 and February 5, 2021. However, Dr. Saccone
did not offer a medical diagnosis or provide an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident. The Board has held that medic al evidence
that does not include a firm diagnosis or an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship. 17 This evidence is, therefore,
insufficient to establish appellant’s claim.
Appellant also submitted occupational therapy reports dated December 21 and 23, 2020,
and January 20, 2021. These documents do not constitute competent medical evidence because
an occupational therapist is not considered a “physician” as defined under FECA. 18 Consequently,

14

D.S., Docket No. 21-0037 (issued May 27, 2021); S.C., Docket No. 20-0327 (issued May 6, 2021); A.R., Docket
No. 19-0465 (issued August 10, 2020); Gary J. Watling, 52 ECAB 278 (2001).
15

See O.N., Docket No. 20-0902 (issued May 21, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

16

Supra note 13. See also J.H., Docket No. 20-1645 (issued August 11, 2021).

17

R.Q., Docket No. 20-0585 (issued September 10, 2021); S.C., Docket No. 20-0492 (issued May 6, 2021).

18

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 13 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); S.J., Docket No. 20-1061 (issued December 22, 2020); see also
J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not considered a physician under
FECA).

5

their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits. 19
Lastly, appellant submitted a November 25, 2020 x-ray of the right wrist. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 20 Thus, this
report is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her right wrist condition and the accepted November 23, 2020 employment
incident, the Board finds that she has not met her burden of proof to establish her claim. 21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

19

Id.

20

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee direct ly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, CENTRAL
FACILITY, Chicago, IL, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-4
Issued: March 12, 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 October 1, 2012 appellant, through her attorney, filed a timely appeal from a July 25,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the April 18, 2003 loss of wageearning capacity determination should be modified.
FACTUAL HISTORY
On February 24, 2001 appellant, then a 39-year-old distribution clerk, filed an
occupational disease claim alleging that she sustained right carpal tunnel syndrome causally

1

5 U.S.C. § 8101 et seq.

related to factors of her federal employment. OWCP accepted the claim for a right wrist sprain
and tenosynovitis of the right wrist.
On July 19, 2001 appellant accepted a limited-duty position as a modified distribution
clerk. The position was available from July 19 through September 20, 2001. The job offer
indicated that the position would subsequently continue in accordance with her physician’s work
restrictions.
By decision dated April 18, 2003, OWCP reduced appellant’s compensation to zero
based on its finding that her actual earnings as a modified distribution clerk effective July 19,
2001 fairly and reasonably represented her wage-earning capacity.2
On May 26, 2007 appellant accepted a position as a modified mail processing clerk
repairing damaged mail.
On April 21, 2011 appellant filed a claim for compensation beginning April 8, 2011. She
related that she was sent home from work as part of the National Reassessment Program (NRP).
In a report dated April 21, 2011, Dr. Samuel J. Chmell, an attending Board-certified
orthopedic surgeon, diagnosed right carpal tunnel syndrome and multiple tendinitis. He noted
that appellant was “only being allowed to work two hours at a time.” Dr. Chmell advised that
she could work seven hours per day with restrictions.
On May 18, 2011 Dr. Chmell related that he had treated appellant for 10 years for
employment-related right wrist strain and multiple tendinitis and tenosynovitis. He asserted that
as the employing establishment had decreased her work hours to two hours per day, the original
loss of wage-earning capacity determination was erroneous.
By decision dated June 13, 2011, OWCP denied appellant’s claim for compensation
beginning April 8, 2011. It found that the evidence was insufficient to show modification of the
prior loss of wage-earning capacity determination.
On July 7, 2011 appellant requested a telephone hearing before an OWCP hearing
representative.3
At the telephonic hearing, held on October 12, 2011, appellant’s attorney contended that
the original loss of wage-earning capacity determination was in error as the offered position was
makeshift in nature. Appellant related that she had worked in the nixie unit since 2001.
2

In a decision dated April 24, 2003, OWCP granted appellant a schedule award for a 21 percent permanent
impairment of the right upper extremity. By decision dated September 15, 2010, it found that she had not
established a recurrence of disability from April 14 through 24, 2010.
3

In a progress report dated August 4, 2011, Dr. Chmell related that appellant had a “positive median nerve
compression test on the right side. He diagnosed multiple tendinitis and right carpal tunnel syndrome. Dr. Chmell
noted that she was only working two hours per day even though she was able to work seven hours. In a progress
report dated November 17, 2011, he diagnosed a flare-up of right carpal tunnel syndrome and tendinitis. Dr. Chmell
found that appellant would return to work on November 29, 2011.

2

By decision dated December 19, 2011, an OWCP hearing representative affirmed the
June 13, 2011 decision. She found that appellant did not establish that the original loss of wageearning capacity determination was in error or that her condition materially worsened.
On January 11, 2012 Dr. Chmell related that appellant’s right upper extremity condition
“has shown steady and progressive deterioration as she has continued to work following her
original injury.” He attributed her right carpal tunnel syndrome to her chronic tendinitis.
Dr. Chmell asserted that appellant’s condition had materially changed.4
On April 3, 2012 appellant, through her attorney, requested reconsideration. He
maintained that the opinion of Dr. Chmell established a material worsening of her condition and
also that the original job offer by the employing establishment was makeshift in nature.
By decision dated July 25, 2012, OWCP denied modification of its December 19, 2011
decision.
On appeal appellant’s attorney argues that she has established a material change in her
condition. He further contends that the original loss of wage-earning capacity determination was
erroneous as it was based on a makeshift position.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
FECA Bulletin No. 09-05, however, outlines OWCP’s procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
4

On March 23, 2012 Dr. Chmell advised that diagnostic studies confirmed that appellant had right carpal tunnel
syndrome. He stated, “In essence, she has had a significant deterioration of her already accepted work-related
condition of multiple tendinitis of her right forearm and wrist and right wrist strain such that her tendons and wrist
remain inflamed and swollen to the point where they have compressed the median nerve which is known as a
compression neuropathy of the median nerve at her right wrist….”
5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Id.

3

capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.9
ANALYSIS
OWCP accepted that appellant sustained right wrist sprain and tenosynovitis causally
related to factors of her federal employment. On April 18, 2003 it found that her actual earnings
as a modified distribution clerk effective July 19, 2001 fairly and reasonably represented her
wage-earning capacity. On April 20, 2011 appellant filed a claim for compensation beginning
April 8, 2011 because her hours were reduced under NRP.
OWCP issued a formal loss of wage-earning capacity decision on April 18, 2003. The
employing establishment reassessed appellant’s position under NRP, resulting in a withdrawal of
limited duty and a claim for wage-loss compensation. OWCP analyzed the case under the
customary criteria for modifying a loss of wage-earning capacity determination. Its decision did
not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for
claims, such as this, in which modified-duty positions are withdrawn pursuant to NRP.
FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether
a modification of the decision is appropriate. FECA Bulletin No. 09-05 asks OWCP to confirm
that the file contains documentary evidence supporting that the position was an actual bona fide
position.10 It requires OWCP to review whether a current medical report supports work-related
disability and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.11 In this case, in May 18, 2011,
Dr. Chmell indicated that he continued to treat appellant for right wrist strain and tendinitis and
opined that she could work with restrictions.
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring the employing
establishment to address in writing whether the position on which the loss of wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct a
review of its files for contemporaneous evidence concerning the position.12
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the July 25, 2012 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate decision
on appellant’s entitlement to compensation beginning April 8, 2011.13
9

FECA Bulletin No. 09-05 (issued August 18, 2009).

10

A position that is makeshift in nature is not appropriate for a loss of wage-earning capacity determination. See
Selden H. Swartz, 55 ECAB 272 (2004).
11

FECA Bulletin No. 09-05 §§ I.A.1-2.

12

Id. at § I.A.3; see also P.B., Docket No. 12-799 (issued December 11, 2012).

13

See M.E., Docket No. 11-1416 (issued May 17, 2012).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 12, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

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

Docket No. 08-703
Issued: June 24, 2008

Case Submitted on the Record

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

JURISDICTION
On December 31, 2007 appellant filed a timely appeal from a December 14, 2007
decision of the Office of Workers’ Compensation Programs which denied her recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.1
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
September 25, 2007 causally related to her May 15, 2006 employment injury.

1

The record contains a July 10, 2007 decision of the Office which denied her claim for a recurrence of disability
on April 6 and 9, 2007. In her application to the Board, appellant did not seek review of this decision and it is not an
issue in the present appeal.

FACTUAL HISTORY
On May 15, 2006 appellant, then a 59-year-old transportation security screener, sustained
an injury when she slipped and fell while in the performance of duty. Her claim was accepted by
the Office for a lumbosacral strain and contusion.2 Appellant received continuation of pay from
May 15 to June 18, 2006. She was continued on light duty subject to specified physical
restrictions performing sedentary work and received intermittent medical treatment at the John F.
Kennedy Airport medical offices and her private physicians.
Appellant stopped work, claiming a recurrence of disability as of October 25, 2006. Her
claim was accepted by the Office and she received compensation for total disability.3 She came
under the treatment of Dr. Robert Lanter, a Board-certified osteopath, who noted an impression
of low back pain with lumbosacral radiculopathy, local reactive myofascial pain and
paravertebral tenderness with spasm. Dr. Lanter advised that appellant’s complaints were
causally related to a May 14, 2005 injury at work while lifting heavy bags onto a table. On
April 11, 2007 he again noted a history of the 2005 injury while lifting bags and opined that she
remained disabled.4 Dr. Lanter provided physical therapy, trigger point injections and noted that
appellant would be referred for a surgical evaluation.
An MRI scan was obtained on May 9, 2007 which revealed multilevel degenerative disc
disease of the lumbar spine with convexity of the lower thoracic and upper lumbar spine and
asymmetric disc bulging at L3-4 and L4-5, with neural foraminal narrowing most severe at L4-5.
Appellant was referred by the Office for examination by Dr. Frank M. Hudak, an
orthopedic surgeon. In a May 15, 2007 report, Dr. Hudak reviewed a history of appellant’s
May 2005 lifting injury and the May 2006 slip and fall injury and subsequent medical treatment.
Appellant described symptoms of constant low back pain, worse on bending, with numbness
radiating down both lower extremities. Examination of the low back revealed tenderness in the
midline of the lumbosacral spine, extending into the L3 to S1 region. Dr. Hudak noted her range
of back motion, indicating that no spasm was palpated in either the right or left paraspinal
muscle groups. A positive left straight leg raising test was obtained in the upright position.
Dr. Hudak diagnosed a sprain of the lumbosacral spine causally related to the May 15, 2006
injury, superimposed on a previous sprain and left lumbosacral radiculopathy that was a result of
the 2005 work accident. He advised that she had objective findings upon examination and that
she was disabled from her work as a baggage screener. Dr. Hudak advised, however, that
appellant could return to light-duty work with no repetitive bending at the waist and no lifting in
excess of 10 pounds. He recommended that she be referred for pain management or epidural
2

The medical record reveals that appellant had a preexisting herniated disc condition at L4-5 for which she had
been treated since 1996. Appellant was performing light duty at the time of her injury.
3

A November 8, 2006 magnetic resonance imaging (MRI) scan was obtained of appellant’s lumbosacral spine. It
revealed disc bulging at L3-4, L4-5 and L5-S1 with thecal sac effacement noted. The lumbar discs at L1-2 and L2-3
were described as normal in height without disc bulging or herniation noted. A prior MRI scan from June 18, 2005
had been reported as showing scoliosis with a herniated disc at L4-5.
4

As noted, appellant returned to limited duty on April 4, 2007 and subsequently claimed recurrences of disability
on April 6 and 9, 2007. See supra note 1.

2

steroid injections to treat her left radiculopathy. Dr. Hudak submitted work restrictions,
releasing appellant to full-time work with limitations on sitting, lifting, twisting and bending.
On June 13, 2007 the employing establishment advised that it had limited duty available
that complied with the restrictions set by Dr. Hudak. Appellant accepted the limited duty and
returned to work on July 16, 2007 as an exit lane monitor and at the welcome tables.
On September 14, 2007 appellant was seen by Dr. Irfan A. Alladin, an attending general
practitioner,5 who noted her complaints of low back pain and listed findings on physical
examination, including spasm of the lumbar paraspinal muscles bilaterally. Straight leg raising
was described as positive on the left. Dr. Alladin diagnosed low back syndrome for which he
recommended physical therapy, anti-inflammatory medication and a series of epidural injections.
The record reflects that appellant stopped work following her tour of duty on
September 26, 2007. On October 12, 2007 she submitted a claim for a recurrence of disability
commencing September 25, 2007, noting that she stopped work as of September 26, 2007.
Appellant indicated that a chair was changed that did not provide adequate back support. The
employing establishment noted that she had completed work on September 26, 2007 without any
complaint of pain or notice of problems with her chair. In support of her claim, appellant
submitted several prescription notes from Dr. Alladin with his recommendation that she undergo
physical therapy and for medication.
On October 5, 2007 appellant was examined by Dr. Renato Battisti, a chiropractor, who
found limitations of movement and diagnosed lumbar myofasciitis with lumbosacral strain,
noting that appellant had begun chiropractic treatment.
On October 9, 2007 Dr. John Goutos, an internist, noted that appellant had been out of
work for approximately a week due to an exacerbation of back pain. He advised that she had
received seven epidurals and was scheduled for additional injections. Dr. Goutos listed findings
on examination, noting tenderness on palpation and spasm at the L4 to S1 region and positive
straight leg raising. He diagnosed a herniated lumbar disc and back pain and advised that she
should be placed on light duty as of October 11, 2007.
In an October 12, 2007 report, Dr. Michael Shapiro, an orthopedic surgeon, treated
appellant for back and left lower extremity pain. He noted tenderness to palpation and
percussion about the lumbar spine with a reduction of straight leg raising, bilaterally.
Dr. Shapiro advised that appellant would be continuing with conservative care, undergoing
epidural injections and facet block treatments. He stated that she remained disabled for work.
By letter dated October 25, 2007, the Office advised appellant that it had received her
recurrence of disability claim. It requested that she submit additional medical evidence
establishing that she was unable to perform light-duty work. Appellant was directed to obtain a
medical report from an attending physician who provided a history of injury, description of
medical findings and an opinion on the period of disability.

5

The record contains numerous form reports of varied legibility from appellant’s attending physicians.

3

On December 14, 2007 the Office denied appellant’s claim. It found that she did not
establish that her injury-related condition had changed or that her light-duty work assignment
had changed. The medical evidence submitted in support of her claim was found deficient as her
physicians did not explain how her condition had changed such that she was no longer able to
perform her light-duty assignment as of September 25, 2007.
LEGAL PRECEDENT
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence
establishes that she can perform limited-duty work, the employee has the burden of proof to
establish a recurrence of total disability. The employee must show a change in the nature of the
injury-related condition or a change in the nature of the limited-duty job requirements.6
A recurrence of disability is defined as the 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.7 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.8 The weight of medical opinion is determined on the report of a
physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.9
ANALYSIS
The Office accepted that appellant sustained injury on May 15, 2006 when she slipped
and fell at work. Her claim was accepted for a lumbosacral strain and contusion. The record
reveals that, at the time of injury, appellant had a preexisting herniated disc at L4-5 for which she
had received medical treatment.10 She returned to light-duty work on several occasions with
intermittent disability for which she received treatment. Appellant stopped work on
September 26, 2007, alleging a recurrence of disability causally related to her May 15, 2006
injury. The Board finds that the medical evidence is not sufficient to establish her claim.
Appellant submitted several prescription notes and form reports from Dr. Alladin, an
attending general practitioner. However, Dr. Alladin’s sole narrative report is dated
September 14, 2007, prior to her claimed recurrence of disability. He noted appellant’s
6

See Cecelia M. Corley, 56 ECAB 662 (2005); Terry R. Hedman, 38 ECAB 222 (1986).

7

20 C.F.R. § 10.5(x).

8

See Donald E. Ewals, 51 ECAB 428 (2000).

9

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

10

The Board notes that appellant also related a history of a May 14, 2005 injury at work after she lifted heavy
bags onto a table. The evidence of record in this case does not indicate whether that claim was accepted by the
Office.

4

complaints of low back pain, but did not provide any narrative report after September 26, 2007
explaining how her disability for continuing in her light-duty work was caused or contributed to
by her May 15, 2006 injury. There are numerous form records from various attending
physicians; however, many are not clearly legible and do not provide a rationalized opinion on
the relevant issue of causal relation. The Board has held that prescription notes or form reports
that provide a check mark in support of causal relation are of diminished probative value.11
Dr. Goutos advised on October 9, 2007 that appellant had been out of work for a week
due to an exacerbation of back pain. He noted medical treatment which had been administered
and listed findings on examination. Dr. Goutos diagnosed a herniated disc and advised that
appellant should be placed on light duty as of October 11, 2007. The Board notes that the brief
report of the physician fails to provide any explanation of how appellant’s medical condition had
changed such that she became disabled for light-duty work after September 26, 2007.
Dr. Goutos did not provide a fully history of the injury accepted by the Office or address the
nature of appellant’s preexisting degenerative back disease and herniated disc conditions. He did
not address how the accepted lumbosacral strain and contusion would cause or contribute to her
inability to continue light-duty work. In fact, Dr. Goutos advised that appellant should return to
light-duty work as of October 11, 2007. His report is not sufficient to establish appellant’s
claim.
On October 12, 2007 Dr. Shapiro treated appellant for low back and left lower extremity
pain. He advised that she was undergoing conservative treatment and that she remained disabled
for work. However, Dr. Shapiro did not address the lumbosacral strain and contusion conditions
accepted by the Office or how these conditions would cause disability for work after
September 26, 2007. He did not provide any opinion relating appellant’s disability for work to
the May 15, 2006 injury. Therefore, Dr. Shapiro’s opinion is of reduced probative value.
Dr. Battisti, a chiropractor, examined appellant on October 5, 2007 and diagnosed lumbar
myofasciitis and lumbosacral strain. However, section 8101(2) of the Federal Employees’
Compensation Act defines the term “physician” to include chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a spinal subluxation as demonstrated by x-ray to exist.12 Dr. Battisti did not
provide a diagnosis of subluxation as based on x-ray. For this reason, his medical report does
not constitute competent medical evidence in support of appellant’s claim.
Appellant has not met her burden of proof of establishing a change in the nature of the
lumbosacral strain and contusion arising from her accepted claim of injury. There is no narrative
report from an attending physician that provides a rationalized explanation of how her accepted
conditions changed, such that she was not able to continue in her light-duty work after
September 26, 2007. Similarly, appellant failed to establish a change in her light-duty job
requirements. At the time she filed her claim, appellant merely noted that a chair had been
changed which did not provide adequate back support. The employing establishment
controverted this aspect of her claim, noting that she finished her tour on September 26, 2007
11

See Celelia M. Corley, supra note 6; Donald W. Long, 41 ECAB 142 (1989).

12

5 U.S.C. § 8101(2). See Paul Foster, 56 ECAB 208 (2004); Linda Thompson, 51 ECAB 694 (2000).

5

and had not mentioned any problems with her chair. The evidence of record is not sufficient to
establish a change in appellant’s light-duty job requirements.
CONCLUSION
The Board finds that appellant did not establish a recurrence of disability on or after
September 26, 2007 causally related to her May 15, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6