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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0978
Issued: November 21, 2016

Case Submitted on the Record

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

JURISDICTION
On April 7, 2016 appellant, through counsel, filed a timely appeal of a December 10,
2015 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 18, 2014; and (2) whether
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.

appellant has established that she had continuing disability caused by residuals of her accepted
right shoulder condition following the termination of compensation benefits on
November 18, 2014.
FACTUAL HISTORY
On October 5, 2009 appellant, a 54-year-old modified letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 24, 2009 she injured her right shoulder
while unloading pallets containing parcels of mail. OWCP accepted the claim for tear of the
supraspinatus tendon of the right shoulder. Appellant stopped work in November 2009. She
received disability compensation on the supplemental rolls beginning January 19, 2010 and on
the periodic rolls beginning February 2, 2010.
Appellant underwent OWCP-authorized right shoulder surgery on January 28, 2010,
which included rotator cuff repair and acromioplasty. The surgery was performed by
Dr. John M. Fenlin, Board-certified in orthopedic surgery. In a report dated September 1, 2010,
he related that appellant could work without restrictions. Dr. Fenlin noted that she would
continue medical treatment with Dr. Scott M. Fried, an osteopathic physician.
OWCP wrote to Dr. Fried on September 24, 2010 noting that appellant had undergone
surgery on January 28, 2010 for her work-related injury. It requested that he provide an opinion
as to whether she could return to work. By report dated October 7, 2010, Dr. Fried related that
appellant’s right shoulder movement was much improved since her surgery, but she still had
persistent pain from the right lateral neck, to the shoulder, arm, and wrist, as well as overuse
syndrome of the left shoulder. He concluded that she had multiple other conditions and that she
could not be released to full-duty work.
Appellant continued to treat with Dr. Fried. In a report dated September 26, 2013,
Dr. Fried related that her right shoulder pain continued. He related that appellant had trouble
lifting even a gallon of milk, that she had weakness in her arm, and her symptoms were
progressing. Dr. Fried related that on physical examination her right shoulder range of motion
was good, but very painful, especially with abduction and internal rotation, abduction was slow
and difficult. He also related that appellant’s right shoulder was very tight and tender. Dr. Fried
concluded that her shoulder pain was not manageable for performance of a full day’s work.
In an August 26, 2014 report, Dr. Fried advised that appellant had ongoing pain in her
right shoulder, which increased with heightened activity and radiated up to her neck and down
her right arm. He reported that she rated her pain as ranging from a 3 to a 7 on a scale of 1 to 10.
Dr. Fried advised that appellant should modify her activities and noted that she had less pain
when she stayed within her physical limitations. He opined that she remained limited and
symptomatic and was unable to return to regular work activities. Dr. Fried recommended that
appellant undergo functional capacity testing to evaluate her capabilities and limitations; he
advised that this would clarify her limitations regarding her work activity. He opined that she
required further treatment for her right shoulder condition, including a home therapy program,
and continued lifestyle and behavior modifications.

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In order to determine appellant’s current condition and ascertain whether she still had
residuals from her accepted right shoulder conditions, OWCP referred her for a second opinion
examination with Dr. Noubar A. Didizian, Board-certified in orthopedic surgery. In a
September 25, 2014 report, Dr. Didizian asserted that appellant had a successful repair of the
right rotator cuff and that clinically she had recovered. He noted that Dr. Fenlin concurred in
this opinion. Dr. Didizian further noted that Dr. Fenlin had advised that appellant could return to
work with no restrictions regarding her right shoulder and did not require any further medical
treatment.
Regarding appellant’s physical examination, Dr. Didizian related that she had no right
shoulder symptoms at rest, and that she had good range of motion. He related her complaints
that lifting grocery bags could result in soreness. Physical examination of the right shoulder
showed matching flexion and external rotation from right to left, minimal loss of abduction and
internal rotation on the right. Dr. Didizian related that the drop-arm and superior labral tear from
anterior to posterior (SLAP) tests were negative, with good strength, and no referral pain. The
Neer test resulted in soreness globally on the right. Dr. Didizian reviewed appellant’s x-ray and
magnetic resonance imaging scan examinations and concluded that based on appellant’s physical
examination, the review of her medical records, and her history of injury, her rotator cuff tear
was surgically repaired with good results.
Dr. Didizian opined that appellant had fully recovered from the right shoulder rotator cuff
tear. He noted that she might have some restrictions regarding an accepted bilateral carpal tunnel
condition. Dr. Didizian opined, however, that he had only been asked to make findings
regarding whether appellant’s accepted right rotator cuff condition had resolved. He reiterated
that she did not have any restrictions related to the September 2009 right shoulder injury.
On October 15, 2014 Dr. Didizian provided OWCP with an amended work capacity
evaluation form, which indicated that appellant was capable of performing her usual job with the
following work restrictions: no repetitive movements of the right wrist and elbow for more than
six hours; no pushing and pulling exceeding 30 pounds for more than six hours; and no lifting
exceeding 20 pounds for more than six hours.3
On October 17, 2014 OWCP issued a notice of proposed termination of wage-loss
compensation and medical benefits. It found that the weight of the medical evidence, as
represented by Dr. Didizian’s opinion, established that appellant’s accepted right shoulder
condition had resolved and that she had no work-related residuals stemming from these
conditions.
By decision dated November 18, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, finding that Dr. Didizian’s opinion represented the weight of
the medical evidence.4
3

The Board notes that appellant was performing in a modified-duty position, with restrictions on October 5,
2009, the date of injury.
4

OWCP found that, with regard to her bilateral carpal tunnel syndrome, this issue should be adjudicated under
the separate claim accepted by OWCP for that condition.

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In a report dated November 17, 2014, received by OWCP on December 1, 2014,
Dr. Fried expressed his disagreement with Dr. Didizian’s opinion that appellant had fully
recovered from her torn right rotator cuff injury. He reported that she had evidence of a right
shoulder capsulitis with biceps tendinitis and rotator cuff involvement, in addition to evidence of
nerve involvement about her shoulder at the brachial plexus as well with long thoracic nerve, and
upper trapezial issues consistent again with her shoulder problems. Dr. Fried also noted that
appellant had carpal tunnel median neuropathy bilaterally as well as tenosynovitis in both hands
and wrists. He recommended sedentary work and opined that she was not capable of repetitive
activities or regular and aggressive use of her right shoulder, due to the ongoing significant
symptoms.
Dr. Fried advised that the combination of the shoulder and brachial plexus was
intermittently involved with the nerves at the brachial plexus, which resulted in ongoing and
significant pain. He related that appellant had many positive objective findings, including upper
trapezial spasm, positive Tinel’s at the supraclavicular and infra-clavicular fossa, and ongoing
rotator cuff stiffness and weakness. Dr. Fried also noted positive Roes testing, Hunter testing,
Phalen’s testing, and Tinel’s testing, all of which were consistent with ongoing issues regarding
her right upper extremity and ongoing right shoulder symptomatology. He related that although
appellant had surgical intervention and treatment to ameliorate her full thickness rotator cuff tear,
her rotator cuff never returned to normal. Dr. Fried reiterated that she had ongoing evidence of
her capsulitis of the shoulder as well as rotator cuff weakness. He opined that appellant did not
have a normal right shoulder and arm, and that returning to work without specific testing in a
controlled environment would be dangerous to her and her coworkers. Dr. Fried advised that to
return her to work without restrictions was not a medically well-reasoned decision and would
result in furthering her injuries. He asserted that appellant had ongoing severe and substantial
limitations and ongoing dysfunction and disability, which were directly and causally related to
her accepted right shoulder injury, in addition to her bilateral carpal tunnel syndrome.
On August 4, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative, which was held on March 7, 2016.
By decision dated May 29, 2015, OWCP’s
November 17, 2014 termination decision. He found
presented, i.e., Dr. Fried’s November 17, 2014 report,
sufficient to negate OWCP’s finding that Dr. Didizian’s
medical evidence.

hearing representative affirmed the
that the medical evidence appellant
did not constitute medical evidence
opinion represented the weight of the

By letter dated July 7, 2015, received July 13, 2015, counsel requested reconsideration.
In a June 3, 2015 report, received by OWCP on July 13, 2015, Dr. Fried advised that
appellant was working modified duty consisting of computer keying, answering telephones,
writing, and casing for about two hours a day. As part of her assignments, appellant was also
required to carry trays and buckets, lift bins, and thumb through letters. Dr. Fried reiterated that
she had ongoing residuals from her accepted September 24, 2009 rotator cuff injury, specifically
supraspinatus tendon right shoulder as well as brachial plexus injury involving the nerves that
surrounded the shoulder, and that she had ongoing residual from that injury in the right shoulder.
He advised that his most recent examination clearly showed evidence of pain, discomfort, and

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dysfunction, with limited ability of the rotator cuff to function as well as severe nerve injury; he
asserted that this was attributable to the September 24, 2009 injury. Dr. Fried opined that
although appellant had surgical intervention for her rotator cuff, her physicians were not able to
restore normal function and that she experienced ongoing disability and dysfunction with respect
to her rotator cuff and her brachial plexus nerves. He advised that this symptomatology was
supported by overwhelming objective findings and ongoing medical examinations which showed
consistent dysfunction despite attempts at improvement. Dr. Fried related that, while appellant
could perform limited activities, she was not able to perform her previous work activities. He
opined that she remained disabled from her ongoing right shoulder symptoms and that her
disability was the result of the September 24, 2009 work incident.
By decision dated December 10, 2015, OWCP denied modification of the May 29, 2015
termination decision finding that Dr. Fried’s June 3, 2015 report did not outweigh the opinion of
the second opinion examiner, Dr. Didizian who provided a rationalized medical opinion that all
residuals from her supraspinatus right shoulder tear had ceased. It determined that Dr. Didizian’s
opinion continued to represent the weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.5 After it has determined that an employee has disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
Furthermore, the right to medical benefits for an accepted condition is not limited to the
period of entitlement for disability.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
ANALYSIS -- ISSUE 1
OWCP based its decision to terminate appellant’s wage-loss compensation and medical
benefits on the opinion of Dr. Didizian, OWCP’s second opinion physician, who found that her
accepted tear of the supraspinatus tendon of the right shoulder had resolved. Dr. Didizian noted
good range of motion, no symptoms at rest, and negative drop-arm and SLAP tests. He properly
reviewed appellant’s medical record, including the report from her treating surgeon, Dr. Fenlin.
5

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

6

Mary A. Lowe, 52 ECAB 223, 224 (2001).

7

See Del K. Rykert, 40 ECAB 284 (1988). L.J., Docket No. 14-1682 (issued December 11, 2015).

8

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

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Id.

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Dr. Didizian also conducted a physical examination of her and extensive examination findings.
He concluded that, based upon the record and his physical examination, appellant had a
successful repair of the right rotator cuff and that clinically she had recovered. Dr. Didizian
further opined that she could return to work and had no restrictions related to the
September 2009 right shoulder injury.
The factors that comprise the evaluation of medical opinion evidence include the
opportunity for and thoroughness of physical examination, the accuracy, or completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.10 As Dr. Didizian explained
his review of the medical evidence and the findings of his physical examination, his opinion
provides sufficient detail to constitute a rationalized medical opinion as to why the accepted tear
of the supraspinatus tendon of the right shoulder condition caused by a September 24, 2009
employment injury had resolved without residuals. His opinion is sufficiently probative,
rationalized, and based upon a proper factual background11 and it represents the weight of the
medical evidence at the time of its May 29, 2015 termination decision.12 OWCP has met its
burden of proof to terminate. Thus, the Board will affirm OWCP’s December 10, 2015 decision
with regard to the termination of compensation.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate compensation benefits on May 29, 2015,
the burden shifted to appellant to establish any continuing disability causally related to the
accepted condition.13
Causal relationship is a medical issue. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.14 To prevail, the claimant must establish by the weight of the reliable, probative, and
substantial evidence that he or she had an employment-related disability, which continued after
termination of compensation benefits.15

10

Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002); see also G.I., Docket
No. 14-1857 (issued September 9, 2015).
11

A.B., Docket No. 16-0480 (issued August 29, 2016).

12

See C.P., Docket No. 15-0617 (issued August 4, 2015).

13

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

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

15

See J.A., Docket No. 15-0908 (issued August 6, 2015).

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Section 8123(a) of FECA provides in pertinent part: “If there is a 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.16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether appellant had
continuing disability causally related to her accepted employment injury after
November 18, 2014.
Following the termination of wage-loss compensation and medical benefits on
November 18, 2014 OWCP received additional medical evidence. The Board finds that there is
now a conflict in the medical evidence between the opinions of Dr. Didizian and Dr. Fried
concerning whether appellant is still entitled to compensation for continuing disability and
whether she continued to experience residuals from her accepted tear of the supraspinatus tendon
of the right shoulder condition.17
As previously noted, Dr. Didizian opined in his September 25, 2014 report that appellant
had a successful repair of the right rotator cuff and that she had fully recovered from her right
shoulder tear. Dr. Fried in his last report of August 26, 2014, prior to the termination of her
compensation benefits, related that she should undergo a functional capacity evaluation to
determine her ability to return to work.
However in his reports following the termination of compensation benefits, dated
November 17, 2014 and June 3, 2015, Dr. Fried related that appellant had not fully recovered
from her right shoulder injury. He reported that she had ongoing and significant pain in her right
shoulder; despite medication management and treatment, she continued to have ongoing,
significant symptoms, which were supported by multiple objective findings. Dr. Fried advised
that appellant also had ongoing severe, substantial limitations, and ongoing dysfunction and
disability, which were directly and causally related to her accepted right shoulder injury. He
advised that, in light of these findings, her right shoulder condition had not resolved.
The Board finds that a conflict in medical opinion arose following the termination of
compensation benefits between Dr. Fried and Dr. Didizian as to whether appellant’s accepted
condition caused continuing disability.18
Accordingly, the Board will set aside the December 10, 2015 OWCP decision with
regard to the issue of continuing disability. The case will be remanded for referral of appellant,
the case record, and a statement of accepted facts to an impartial medical examiner to resolve the
conflict in the medical evidence regarding whether she had any continuing disability stemming
from her accepted tear of the supraspinatus tendon of the right shoulder condition, following the
16

5 U.S.C. § 8123(a).

17

Id.

18

See D.P., Docket No. 15-0318 (issued September 8, 2015).

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termination of compensation benefits. After such further development of the record as it deems
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 18, 2014. The case is not in posture for
decision as to whether appellant had continuing disability after November 18, 2014. After such
further development as necessary, OWCP shall issue a de novo decision regarding her continuing
disability after November 18, 2014.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed regarding the termination of compensation,
effective November 18, 2014. The December 10, 2015 decision is set aside and the case is
remanded to OWCP for further action consistent with this decision of the Board regarding the
issue of continuing disability.
Issued: November 21, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 16-0950
Issued: October 17, 2016

Case Submitted on the Record

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

JURISDICTION
On April 2, 2016 appellant filed a timely appeal from a November 9, 2015 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 claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish a left elbow injury
causally related to the accepted September 29, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP issued its November 9, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 30, 2015 appellant, then a 51-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging injury to her left elbow. She stated that on September 29,
2015 she was closing the window on her postal vehicle and her left elbow slammed into the door
edge.
A September 30, 2015 medical and work status report from the employing
establishment’s occupational health services, a provider with an illegible signature, provided an
impression of contusion left elbow and indicated that appellant could return to regular
unrestricted duty on October 11, 2015.
In an October 7, 2015 letter, OWCP advised appellant of the deficiencies in her claim and
provided her the opportunity to submit additional factual and medical evidence. Appellant was
advised that she should submit a detailed narrative medical report from her treating physician
which contained a history of the injury and a medical explanation with objective evidence of
how the reported work incident caused or aggravated the claimed condition. She was afforded
30 days to submit such evidence.
In response, OWCP received October 1, 2015 notes from Dr. Monika Ochani, a Boardcertified family practitioner, and diagnostic test notes. Dr. Ochani reported that the incident had
occurred at work 12 to 24 hours prior to the examination and that the injury mechanism was a
direct blow. She noted that appellant’s left elbow pain had been intermittent since the incident,
and associated symptoms included muscle weakness. Dr. Ochani provided examination findings
and diagnosed contusion of left elbow. Copies of the September 30, 2015 x-ray report and notes
were also provided.
By decision dated November 9, 2015, OWCP denied the claim as the medical evidence
failed to establish that the diagnosed left elbow condition was causally related to the accepted
September 29, 2015 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 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.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

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established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident that is alleged to have occurred.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.8
ANALYSIS
Appellant filed a traumatic injury claim alleging injury to her left elbow when she was
closing the window to her postal vehicle and she hit her left elbow on the edge of the door.
OWCP accepted the September 29, 2015 incident as alleged, but found the medical evidence of
record insufficient to establish a left elbow condition causally related to the accepted incident.
The Board finds that appellant has not met her burden of proof to establish an injury causally
related to the September 29, 2015 employment incident.
In her October 1, 2015 report, while Dr. Ochani provided an impression of left elbow
contusion, she failed to provide details of how the injury occurred other than mentioning that it
was from a direct blow. As her opinion did not provide medical rationale to explain causal
relationship it is of limited probative value.9
Copies of the September 30, 2015 x-ray report and notes were also provided. However,
they failed to offer any opinion as to how the reported work incident caused or aggravated a
medical condition. The Board has held that medical evidence which does not offer any opinion

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

Solomon Polen, 51 ECAB 341 (2000).

8

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

9

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

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regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.10 Thus, these reports are insufficient to establish appellant’s claim.
On appeal, appellant provided an explanation as to why she was closing up the window to
her postal vehicle and asserted that she sought medical attention to assure she had no fractures.
She stated that she continued to be billed for medical services incurred as a result of this workrelated accident and submitted additional evidence.11 As discussed above, OWCP properly
found appellant has not established causal relationship between the September 29, 2015 work
incident and her diagnosed condition. Moreover, there is no evidence of a properly completed
Form CA-16 to develop a contractual relationship between appellant and the employing
establishment to either pay or reimburse her for medical expenses. As such, OWCP is not
responsible for payment of the medical bills.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.12 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a left elbow
injury causally related to the accepted September 29, 2015 employment incident.

10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
11

Since the Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision,
the Board may not consider this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47
ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
12

Daniel O. Vasquez, 57 ECAB 559 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2015 is affirmed.
Issued: October 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LOGISTICS MANAGEMENT DIRECTORATE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

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

Docket No. 08-1130
Issued: September 19, 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 March 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 25, 2008 merit decision denying his occupational claim as
untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s occupational disease claim on
the grounds that it was untimely filed.
FACTUAL HISTORY
On November 14, 2007 appellant, then a 61-year-old packaging specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained injury due to the performance
of his work duties over a period of time. Regarding the nature of the injury, he stated, “Wearing
down of 5th and 6th vertebrae compressed on nerves.” Regarding the relationship of the claimed

illness to his work, appellant noted, “Because of the type and [du]ration of work that I was
performing, aggravated with movement, lifting, pulling and general discomfort.” He indicated
that he first became aware of his claimed condition on July 22, 1998 and that he first realized
that it was caused or aggravated by his employment on the same date.1
On the Form CA-2, appellant’s supervisor, Joaquin P. Patlan, stated, “at the time of
injury employee was assigned to WG-4602 duties as part of Kelly Air Force Base BRAC [base
realignment and closure]. After injury employee returned to GS-2032 position as assigned.”
Mr. Patlan indicated that appellant was last exposed to the conditions alleged to have caused his
claimed condition on September 28, 1998 and noted that appellant reported the claimed injury to
him on August 10, 2007. Appellant did not stop work around the time he filed his claim.
In November 7 and December 12, 2007 statements, appellant indicated that he first
experienced neck and right arm problems in 1997 or 1998 when he was carrying out base
realignment and closure work at Kelly Air Force Base. His work required bending and lifting,
pulling, stacking and carrying items to facilitate the packaging process. Appellant asserted that
he had experienced continuous pain since 1997 or 1998 and stated the cause of the pain was “the
cumulative effects over a period of time from the type of work I was doing which included
blocking and bracing equipment and munitions on trucks for movement.”
In a November 15, 2007 statement, Mr. Patlan stated that he had been appellant’s
supervisor since October 2003 and noted that appellant worked as a GS-2032 packaging
specialist. He indicated that this position sometimes required climbing ladders to reach storage
bins, reaching to lift items onto scales, balancing awkward loads while measuring with a tape
measure and lifting and carrying items weighing up to 30 pounds (including awkwardly-shaped
items such as plywood sheets).2 Mr. Patlan stated that he had been appellant’s coworker prior to
serving as his supervisor and indicated that in the late 1990s appellant was working in a WG4602 blocking and bracing position.3 This position was more strenuous than the GS-2032
packaging specialist position and required appellant to lift and carry plywood sheets and power
tools, load and unload trucks, climb off and on truck beds and operate pneumatic nail guns.
Appellant submitted a job description of the packaging specialist position (bearing the
classification number GS-2032-11). The position required sitting for long periods of time,
walking, climbing, bending, stooping and lifting and carrying light to moderate loads.4
Appellant submitted a number of medical reports regarding the treatment of his neck problems
between July 1998 and April 2004. A January 19, 2004 surgery report indicated that he
underwent an anterior arthrodesis at C5-6 and C6-7 with decompression, bilateral discectomy
and neural foraminotomy which was performed by Dr. Scott Robertson, an attending Board-

1

Appellant indicated that he did not file his claim within 30 days of July 22, 1998 because he was not aware of
the filing procedures.
2

Mr. Patlan indicated that appellant had been the lead packaging designer since June 2000.

3

Mr. Patlan indicated that this was part of the base realignment and closure work at Kelly Air Force Base.

4

A personnel document indicates that appellant held this classification of job on March 4, 2007.

2

certified orthopedic surgeon. The medical records indicated that appellant had experienced neck
problems for seven years and that he had a previous cervical laminectomy in 1998.5
In a February 25, 2008 decision, the Office denied appellant’s claim on the grounds that
it was untimely filed. It found that appellant should have been aware of the relationship between
his employment and the claimed condition by July 22, 1998, the date he indicated on his Form
CA-2 that he first realized that his claimed condition was caused or aggravated by his
employment. The Office noted that there was no evidence that appellant’s immediate supervisor
had actual knowledge of the claimed injury within 30 days of July 22, 1998. Appellant’s claim
was untimely because it was filed on November 14, 2007, a date more than three years after
July 22, 1998.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act6 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,7 including that he is an “employee” within the meaning of
the Act8 and that he filed his claim within the applicable time limitation.9
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death.10 Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or

5

X-rays from December 2003 and January 2004 showed degenerative disease of the cervical spine, mostly at
C5-6.
6

5 U.S.C. §§ 8101-8193.

7

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

8

Kenneth W. Grant, 39 ECAB 208 (1987); James E. Lynch, 32 ECAB 216 (1980); Emiliana de Guzman (Mother of
Elpedio Mercado), 4 ECAB 357 (1951); see 5 U.S.C. § 8101(1).
9

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7 ECAB
227 (1954).
10

5 U.S.C. § 8122(a).

3

(2) written notice of injury or death as specified in section 8119 was given within
30 days.11
Section 8122(b) provides that, in a case of latent disability, the time for filing a claim
does not begin to run until the employee has a compensable disability and is aware, or by
exercise of reasonable diligence should have been aware, of the causal relationship of the
compensable disability to his employment. In such a case, the time for giving notice of injury
begins to run when the employee is aware, or by the exercise of reasonable diligence should
have been aware, that his condition is causally related to his employment, whether or not there is
a compensable disability.12 The Board has held that the applicable statute of limitations
commences to run although the employee does not know the precise nature of the impairment.13
If an employee continues to be exposed to injurious working conditions after awareness of the
causal relationship of the compensable disability to his employment, the time limitation begins to
run on the last date of this exposure.14
ANALYSIS
Appellant filed an occupational disease claim on November 14, 2007 alleging that he
sustained cervical and cervical nerve root problems due to the performance of his work duties
over a period of time. In a February 25, 2008 decision, the Office denied appellant’s claim on
the grounds that it was untimely filed. It determined that appellant should have been aware of
the relationship between his employment and the claimed condition by July 22, 1998 and noted
that there was no evidence that his immediate supervisor had actual knowledge of the claimed
injury within 30 days of July 22, 1998. The Office found that appellant’s claim was untimely
because it was filed on November 14, 2007, a date more than three years after July 22, 1998.
The Board finds that appellant was aware of the possible relationship of his cervical
problems as early as July 22, 1998. In his Form CA-2, appellant indicated that he first became
aware of his claimed condition on July 22, 1998 and that he first realized that it was caused or
aggravated by his employment on the same date. In another statement, he stated that he first
experienced neck and right arm problems in 1997 or 1998 when he was carrying out base
realignment and closure work at Kelly Air Force Base. The Board further notes, however, that,
if an employee continues to be exposed to injurious working conditions after awareness of the

11

Section 8119 provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly
stamped and addressed; be in writing; state the name and address of the employee; state the year, month, day and
hour when and the particular locality where the injury or death occurred; state the cause and nature of the injury or
in the case of death, the employment factors believed to be the cause; and be signed by and contain the address of
the individual giving the notice.
12

5 U.S.C. § 8122(b).

13

Delmont L. Thompson, 51 ECAB 155 (1999).

14

Charlene B. Fenton, 36 ECAB 151, 157 (1984); Gladys E. Olney, 32 ECAB 1643, 1645 (1982).

4

causal relationship of the compensable disability to his employment, the time limitation begins to
run on the last date of this exposure.15
The Board finds that appellant continued to be exposed to the work factors he believed
caused his claimed injury up through the time he filed his claim on November 14, 2007. The
record reveals that in the late 1990s appellant worked in a WG-4602 blocking and bracing
position. This position required appellant to lift and carry plywood sheets and power tools, load
and unload trucks, climb off and on truck beds and operate pneumatic nail guns. It appears that
in the very late 1990s or early 2000s appellant began working as a GS-2032 packaging specialist,
a position which required climbing ladders to reach storage bins, reaching to lift items onto
scales, balancing awkward loads while measuring with a tape measure and lifting and carrying
items weighing up to 30 pounds (including plywood sheets). Appellant was still performing the
GS-2032 packaging specialist position when he filed his claim on November 14, 2007.
The Board notes that the mere fact that the WG-4602 blocking and bracing position
might have involved more strenuous activities than the GS-2032 packaging specialist position
does not mean that appellant stopped performing the types of duties which he believed caused
his claimed cervical condition.16 Both positions involved such duties as bending, climbing,
reaching and lifting and carrying heavy and awkwardly-shaped items. Therefore, appellant’s
date of last exposure to the claimed work exposures continued up through the time he filed his
claim on November 14, 2007. Hence, appellant’s claim was timely filed and the Office
improperly denied his claim for failure to file a timely claim.
Because the Office denied appellant’s claim for being untimely filed, it did not evaluate
the medical evidence of record. The case is remanded to the Office for consideration of whether
the medical evidence shows that appellant sustained an occupational condition due to the
claimed employment factors. After such development as it deems necessary, the Office should
issue an appropriate decision regarding appellant’s occupational disease claim.
CONCLUSION
The Board finds that the Office improperly denied appellant’s occupational disease claim
on the grounds that it was untimely filed. The case is remanded to the Office for further
development of the evidence and issuance of an appropriate decision.

15

See supra note 14 and accompanying text.

16

See W.L., 59 ECAB ___ (Docket No. 07-1913, issued February 22, 2008). In this case, the Board found that
the mere fact that the claimant started working in a limited duty at some point did not mean that he stopped
performing the duties that he believed caused his right knee condition as both his regular work and his light-duty
work required duties which engaged his knee such as walking, standing and climbing. The Board found that the
claimant continued to be exposed to the claimed work factors up through the time he filed his claim and determined
that he filed a timely claim for occupational disease.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 25, 2008 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: September 19, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
L.T., Appellant

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

Docket No. 20-0582
Issued: November 15, 2021

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 January 21, 2020 appellant filed a timely appeal from a November 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted July 21, 2015 employment incident.
FACTUAL HISTORY
On August 5, 2015 appellant, then a 59-year-old sheet metal mechanic (aircraft), filed a
traumatic injury claim (Form CA-1) alleging that on July 21, 2015 he injured his back when he
attempted to turn over a rudder while in the performance of duty. He indicated that he experienced
a sharp pain in his lower back and numbness in his hands. Appellant stopped work on that day
and returned to work on July 23, 2015.
Appellant also submitted medical evidence dated from 2004 to 2014 from multiple
physicians detailing his history of multiple preexisting conditions including chronic back pain and
lumbar degenerative disc disease.
In a July 28, 2015 medical report, Dr. Edmond L. Hooks, a family medicine specialist,
noted that appellant reported that he sustained a lower back injury on July 22, 20153 while turning
over a rudder at work. He diagnosed an aggravation of chronic low back pain, bilateral hand
numbness, and systematic hypertension. Dr. Hooks opined that appellant’s aggravation was not
significant enough to conclude that it was work related.
On July 31, 2015, Dr. Jeffrey B. Cruzan, Board-certified in family medicine, placed
appellant on restricted duty until September 1, 2015.
In an August 3, 2015 medical report, Dr. Philip M. Beck, Board-certified in family
medicine, noted that appellant was seen for recheck of back pain related to the alleged July 21,
2015 employment incident. He noted a history of nonwork-related back pain and provided work
restrictions.
In an August 4, 2015 e-mail, appellant reiterated his account of the alleged July 21, 2015
employment incident. In an undated statement, he noted that he experienced aching in his arms
and numbness in his hands with loss of grip strength.
In an August 31, 2015 medical report, Dr. Cruzan noted that appellant suffered from
chronic neck pain and indicated that he had injured his lower back while moving a heavy object at
work a few weeks prior. He observed that appellant developed numbness and tingling in his hands.
Appellant related that his grip strength decreased as well as a result of his work injury. Dr. Cruzan
diagnosed cervicalgia, diabetes, hyperlipidemia, hypertension, lower back pain, and paresthesia.

3

The Board notes that Dr. Hooks incorrectly identified the date of injury on his report as July 22, 2015. The record
reflects that the accepted incident occurred on July 21, 2015.

2

In a September 3, 2015 medical report, Dr. Hooks noted that appellant was seen for recheck
of back pain related to the alleged July 21, 2015 employment incident. He opined that appellant’s
chronic back pain was aggravated by the alleged July 21, 2015 employment incident.
In an October 1, 2015 medical report, Dr. Cruzan again diagnosed cervicalgia and chronic
lower back pain.
In an October 7, 2015 letter of controversion, on behalf of the employing establishment,
Dr. Edward T. King, an employing establishment physician specializing in preventive and
occupational medicine, reviewed appellant’s history and recommended denial of his claim for
chronic cervical degeneration, thoracic and lumbosacral pain, hip pain, bilateral upper and lower
extremity radiculopathy-type symptoms, and any related diagnoses. He noted that appellant
previously sustained multiple injuries from a nonwork-related motor vehicle accident in 2007.
Dr. King opined that appellant’s current conditions were preexisting and there was no evidence
that there had been more than a minor temporary aggravation caused by his duties at the employing
establishment. He concluded that there was no causal relationship between appellant’s injuries
and his work duties.
In a November 2, 2015 medical report, Dr. Cruzan noted that appellant reported having
more pain since the work injury. He diagnosed, cervicalgia, diabetes, hypertension, a nd lower
back pain.
A January 5, 2016 cervical spine x-ray revealed chronic degenerative facet arthritis at
C2-C3 and C3-C4 and posterolisthesis at C3-C4.
On May 11, 2016 Dr. Cruzan provided appellant work restrictions.
In an October 11, 2016 return-to-work note, Dr. Carl M. Lindquist, a Board-certified
internist, provided work restrictions. In a November 22, 2016 medical report, he indicated that
appellant was seen for a chromate examination. Dr. Lindquist noted appellant’s preexisting
conditions, including hearing loss, cubital tunnel syndrome, numbness, and hypertension, but
found no detectable medical condition.
In a June 20, 2017 medical report, Sammual Gunnels, a certified physician assistant, noted
that appellant previously underwent left finger surgery in 1982 and left elbow surgery in 2008. He
also noted that appellant’s pain began in 2007 and gradually became worse in the past two weeks
without any major event. Mr. Gunnels diagnosed chronic pain syndrome, low back pain, lumbar
spondylosis, lumbar radiculopathy, and other intervertebral lumbosacral disc degeneration.
A June 29, 2017 lumbar spine magnetic resonance imaging (MRI) scan revealed mild facet
anthropathy.
In a July 14, 2017 medical report, Dr. Lindquist noted that appellant’s July 2015 injury was
assessed as nonwork related. He diagnosed nonwork-related chronic back pain and aggravation
of his preexisting degenerative disc disease.
In July 17, 2017, August 14, 2017, and September 12, 2017 medical reports, Mr. Gunnels
reiterated his examination findings and diagnoses.
3

In a July 18, 2017 medical report, Dr. Hooks noted that appellant had a history of
degenerative disc disease since 2003 and reported that appellant still experienced constant back
pain.
In a July 19, 2017 medical note, Dr. Rafael Justiz, Board-certified in pain medicine, noted
that appellant underwent epidural steroid injection that day and diagnosed lumb ar degenerative
disc disease and lumbar radiculitis.
In an August 15, 2017 medical report, Dr. Hooks reiterated his examination findings and
diagnosed chronic low back pain.
In an August 16, 2017 medical note, Dr. Justiz noted that appellant underwent epidural
steroid injection again that day and diagnosed lumbar degenerative disc disease and lumbar
radiculitis.
On September 31, 2017 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment. He explained that he had work restrictions following the initial July 21, 2015
employment injury, but suddenly felt a flare up of pain in his lower back radiating down his left
buttocks, thigh, leg, and foot when he woke up on June 1, 2017.
In a December 22, 2017 development letter, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit the necessary medical evidence. No additional
evidence was received within the time allotted.
By decision dated February 1, 2018, OWCP accepted that the July 21, 2015 employment
incident occurred as alleged, but denied his claim, finding that the medical evidence of record
failed to provide a medical diagnosis causally related to the accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish that he sustained an injury
as defined by FECA.
On February 6, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated September 28, 2018, the hearing representative affirmed OWCP’s
February 1, 2018 decision.
In an August 15, 2019 narrative report, Dr. Cruzan noted that he began treating appellant
in 2008 regarding chronic pain related to a previous injury. He indicated that appellant was seen
on July 31, 2015 for a routine follow up of chronic conditions. Dr. Cruzan noted, however, that
he also reported a recent work-related injury. He explained that his examination findings were
consistent with appellant’s history of injury. Dr. Cruzan noted that appellant was seen again in
August 2015 and the examination findings were again consistent with his history of injury.
On August 30, 2019 appellant, through counsel, requested reconsideration.
By decision dated November 26, 2019, OWCP denied modification of its prior decision.

4

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, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish 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 Neither the mere fact that a disease or condition manifests itself
during a period of employment, nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship. 11

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).
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

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

ANALYSIS
The Board finds that appellant has met his burden of proof to establish a medical diagnosis.
The record establishes that Drs. Lindquist and Justiz provided diagnoses of lumbar degenerative
disc disease, aggravation of preexisting degenerative disc disease, and lumbar radiculitis.
The Board further finds, however, that the medical evidence of record is insufficient to
establish that the diagnosed conditions were causally related to the accepted July 2, 2015
employment incident.
In the July 28 and September 3, 2015 medical reports, Dr. Hooks opined that appellant’s
chronic back pain was aggravated by the accepted July 21, 2015 employment incident. The Board
has held that pain is a symptom and not a specific medical diagnosis. 12 Furthermore, Dr. Hooks
determined that appellant’s aggravation was not significant. The Board has long held that a
medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal
relationship is of no probative value. 13 For these reasons, these medical reports are insufficient to
establish appellant’s burden of proof.
In other medical reports dated July 18 and August 15, 2017, Dr. Hooks provided a history
of preexisting degenerative disc disease and again diagnosed chronic low back pain. As noted,
pain is not a valid diagnosis. 14 Furthermore, Dr. Hooks did not mention the accepted July 21, 2015
employment incident. The Board has held that without a valid medical diagnosis of a current
medical condition linked to the accepted employment incident, the medical compon ent of fact of
injury cannot be met. 15 Thus, these reports are also insufficient to establish the medical component
of fact of injury.
In the July 31, 2015 and May 11, 2016 medical notes, Dr. Cruzan provided work
restrictions, but did not provide a diagnosis. Similarly, Drs. Beck and Lindquist, in their medical
reports dated August 3, 2015 and October 11, 2016, provided work restrictions without a firm
diagnosis. As noted, medical evidence lacking a firm diagnosis is of no probative value. 16
Therefore, this medical evidence is insufficient to establish appellant’s claim.
Dr. Lindquist’s November 22, 2016 and July 14, 2017 medical reports noted a history of
preexisting conditions and diagnosed nonwork-related chronic pain and aggravation of low back
disc degenerative disease, noting that appellant’s July 2015 injury was assessed as nonwork

12

M.H., Docket No. 18-0873 (issued December 18, 2019); J.S., Docket No. 19-0863 (issued November 4, 2019);
V.B., Docket No. 19-0643 (issued September 6, 2019).
13

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
14

Supra note 12.

15

K.B., Docket No. 16-0122 (issued April 19, 2016); D.N., Docket No. 15-0987 (issued August 3, 2015).

16

Supra note 13.

6

related. As Dr. Lindquist failed to provide an opinion on causal relationship, his report is of no
probative value.17
Dr. Cruzan’s August 31, 2015 medical report indicated that appellant suffered from chronic
neck pain. He did not, however, provide an opinion on causal relationship. In his October 1 and
November 2, 2015 reports, Dr. Cruzan again did not provide an opinion on the cause of appellant’s
diagnosed conditions. Similarly, while Dr. Justiz, in his medical reports dated July 19 and
August 16, 2017, diagnosed lumbar degenerative disc disease and radiculitis, he also did not
provide an opinion as to whether the accepted July 21, 2015 employment incident caused or
contributed to appellant’s lumbar conditions. The Board has long held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value.18
Therefore, these reports are insufficient to establish appellant’s claim.
In his August 15, 2019 narrative report, Dr. Cruzan opined that his examination findings
in July and August 2015 were consistent with appellant’s history of injury. He, however, failed to
provide a firm diagnosis in connection with the accepted July 21, 2015 employment incident. As
noted above, a medical report lacking a firm diagnosis is of no probative value.19 Thus, this report
is also insufficient to establish appellant’s burden of proof.
Appellant submitted medical reports signed by a certified physician assistant. The Board
has held, however, that medical reports signed solely by a physician assistant are of no probative
value as physician assistants are not considered physicians as defined under FECA.20 As such,
this evidence is of no probative value and is insufficient to establish appellant’s claim.
Finally, the record also contains the January 5, 2016 cervical spine x-ray and the June 29,
2017 lumbar spine MRI scan. The Board has long held, however, that diagnostic test reports,
standing alone, lack probative value as they do not provide an opinion regarding the cause of the
diagnosed conditions.21 These diagnostic studies are, therefore, insufficient to establish
appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing a medical
diagnosis causally related to the accepted July 21, 2015 employment incident, the Board finds that
he has not met his burden of proof.

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

Id.

19

Supra note 13.

20
Section 8101(2) of FECA provides that 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). See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). See also M.W.,
Docket No. 19-1667 (issued June 29, 2020) (physician assistant).
21

L.B., Docket No. 19-1907 (issued August 14, 2020); J.K., Docket No. 20-0591 (issued August 12, 2020).

7

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 met his burden of proof to establish a medical diagnosis.
The Board further finds, however, that the medical evidence of record is insufficient to establish
that the diagnosed conditions were causally related to the accepted July 2, 2015 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: November 15, 2021
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VANCOUVER (PORTLAND) VETERANS
ADMINISTRATION MEDICAL CENTER,
Vancouver, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 11-188
Issued: October 26, 2011

Case Submitted on the Record

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

JURISDICTION
On November 3, 2010 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ (OWCP) July 30, 2010 nonmerit decision denying his
request for reconsideration with respect to the denial of his claim for a recurrence of total
disability. Because more than 180 days have elapsed between the most recent merit decision
dated March 18, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim for total disability pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3. The Board, however, has jurisdiction to
review the merits of OWCP’s September 1, 2010 merit decision which denied his consequential
injury claim pursuant to FECA and 20 C.F.R. §§ 501.2(c) and 501.3.

1

5 U.S.C. § 8101 et seq.

ISSUES
The issues are:
(1) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim for a recurrence of total disability commencing
April 27, 2009 pursuant to 5 U.S.C. § 8128(a); and (2) whether he sustained a back condition as
a consequence of his accepted employment injury.
On appeal, appellant’s attorney contends that appellant submitted new legal arguments
and medical evidence to OWCP that were sufficient to establish his claims.
FACTUAL HISTORY
On June 12, 2008 appellant, then a 53-year-old electronics mechanic, filed an
occupational disease claim alleging that he sustained a bilateral knee injury as a result of
working on his knees while repairing beds, washing machines and dryers. OWCP accepted his
claim for bilateral leg and knee osteoarthritis and authorized total left and right knee replacement
surgery.
In a January 9, 2009 medical report, Dr. Glenn M. Garro, an attending Board-certified
internist, stated that appellant’s knee problems, most especially his right knee, were now causing
him discomfort in his back which rendered him unable to perform light-duty work.
On February 16, 2009 Dr. Matthew J. Gambee, a Board-certified physiatrist, requested
that OWCP authorize a lumbar spine magnetic resonance imaging (MRI) scan.
By letter dated February 27, 2009, OWCP denied appellant’s request for treatment of a
lumbar spine condition, noting that it had not accepted such a condition as work related. It
requested that he submit a medical report from a physician which described the mechanism by
which a diagnosed lumbar condition was caused by his work activities or accepted bilateral knee
condition supported by medical rationale.
In a March 10, 2009 report, Dr. T. David Hayes, an orthopedic surgeon, stated that
appellant’s back pain could be related to his employment.
In a March 19, 2009 report, Dr. Edward Kim, a physiatrist, noted that since appellant’s
November 2008 left knee replacement surgery, he had worsening back pain. He listed his
findings on physical examination and advised that appellant had left lumbar radiculitis. It
appeared that he had preexisting lumbar chronic pain which was recently exacerbated by his
accepted left knee surgery due to leg length discrepancy. Dr. Kim concluded that appellant
could not return to work unless it involved desk work due to his right knee pain for which he was
awaiting arthroscopic surgery. He, however, stated that appellant could not sit for a prolonged
period due to his back and radicular pain.
In an April 13, 2009 report, Dr. Gambee noted that appellant had a 20-year history of low
back pain. He stated that typically, knee pain did not cause back pain. Dr. Gambee advised that
there was no relationship between appellant’s 20-year history of back pain and any work-related
condition.

2

In an April 15, 2009 report, Dr. Hayes listed his physical examination findings and
reviewed clinical findings and photographs related to appellant’s right knee. He advised that
appellant could return to sedentary work in one week. In an April 28, 2009 report, Dr. Hayes
advised that appellant had a tear of the medial cartilage or meniscus and osteoarthritis of the right
knee. He was unable to perform his regular work duties. Appellant stated that his knee was too
painful to work. Dr. Hayes listed his physical restrictions. In a May 1, 2009 report, Dr. Hayes
stated that appellant had not been released from his care.
In reports dated April 21 and 22, 2009, Dr. Garo requested that appellant be excused from
work through May 22, 2009 due to knee issues that were associated with his chronic back pain
for which he was being evaluated. The time off would also give him ample time to follow-up
with specialists regarding his recent tests results and treatment.
On April 27, 2009 appellant accepted the employing establishment’s April 22, 2009 offer
for a temporary limited-duty position which was based on Dr. Hayes’ April 15, 2009 findings.
He stopped work on April 28, 2009.
Appellant filed claims for compensation (Form CA-7) for the period April 27 through
June 5, 2009.
In a May 5, 2009 report, a physical therapist, addressed the treatment of appellant’s right
knee and back pain.
In a May 29, 2009 report, Dr. Todd A. Borus, a Board-certified orthopedic surgeon, noted
that appellant was recovering from left total knee replacement surgery. He had severe
degenerative arthritis in the right knee for which he was scheduled to undergo total knee
arthroplasty in July 2009. Dr. Borus advised that appellant should not return to work until
approximately three months after his right knee surgery based on the severity of arthritis in his
right knee.
In a June 16, 2009 decision, OWCP denied appellant’s claim for a consequential back
condition, finding that the evidence failed to establish that his claimed condition was casually
related to his accepted employment-related bilateral knee injury and resultant surgeries.
Also, on June 16, 2009 appellant filed a Form CA-7 for the period June 7 to 19, 2009.
By letter dated June 17, 2009, OWCP advised appellant that the evidence of record was
insufficient to establish a worsening of his accepted condition on or after April 28, 2009. It
addressed the medical evidence needed to establish his claim for total disability compensation.
In reports dated May 20 and June 8 and 16, 2009, Dr. Borus reiterated his prior diagnosis
of severe right knee degenerative arthritis and opinion that appellant could not return to work
until approximately three months after his July 2009 right total knee replacement surgery due to
the severity of arthritis in his right knee. In a July 14, 2009 note, he discussed the upcoming
right knee surgery with appellant.
On July 1 and 12, 2009 appellant filed CA-7 forms for the period June 30, 2008 to
July 17, 2009.
3

In a June 30, 2009 progress report, Jenifer Giger, a registered nurse, noted appellant’s
upcoming July 20, 2009 right knee surgery. His anticipated date of maximum medical
improvement was three months post surgery. In a July 2, 2009 note, Kathy Stefan, a registered
nurse practitioner, recommended diagnostic myocardial testing prior to appellant’s surgery in
light of his low exercise capacity and comosbidties.
In a July 24, 2009 decision, OWCP denied appellant’s claim for compensation for the
period commencing April 27, 2009. It found that the medical evidence was insufficient to
establish that his disability during the claimed period was causally related to his accepted
employment injury.
On July 27, 2009 appellant requested an oral hearing regarding the July 24, 2009
decision.
On July 29, 2009 appellant filed a Form CA-7 for the period July 20 through 31, 2009.
In a June 30 2009 report, Ms. Stefan noted appellant’s upcoming right total knee
arthroplasty and medical problems which included diabetes mellitus Type II, hypertension and
dyslipidemia. She advised that his overall risk for a perioperative cardiovascular event was low
based on normal nuclear stress test results.
A July 27, 2009 report from a physical therapist addressed the treatment of appellant’s
right knee condition.
In a June 19, 2009 report, Dr. Borus advised that appellant had a right lateral ankle
sprain. He was still unable to work until after his scheduled right knee surgery. In a July 28,
2009 report, Dr. Borus listed his findings on physical and x-ray examination of appellant’s right
knee following his July 20, 2009 surgery. He was having more problems with his low back.
Dr. Borus anticipated that appellant would be off work for two months. He could then return to
sedentary work for two months.
In a March 18, 2010 decision, an OWCP hearing representative affirmed the denial of
appellant’s claim for a recurrence of total disability. She found that he failed to submit any
rationalized medical evidence to establish that his claimed disability on or after April 27, 2009
was causally related to his accepted employment injury.
By letters dated June 11 and 15, 2010, appellant, through his attorney, requested
reconsideration of the denial of his consequential injury claim.
By letter dated July 22, 2010, appellant, through counsel, requested reconsideration of the
denial of his recurrence of disability claim.
Reports dated July 27, September 2 and October 9, 2009 from appellant’s physical
therapists addressed the treatment of his right knee and back pain.
In reports dated June 30, 2009 and April 13, 2010, Dr. Garo noted appellant’s symptoms
and medications. He advised that appellant had uncontrolled and non-insulin dependent adult
onset Type II diabetes, unspecified osteoarthritis, and lumbar and cervical radiculitis. In the

4

April 13, 2010 report, Dr. Garo advised that appellant was unable to perform the duties of an
offered position. In an April 13, 2010 work capacity evaluation (Form OWCP-5c), he stated that
appellant was unable to perform his regular work duties due to cervical and lumbar problems and
listed his physical restrictions.
In reports dated April 13 and June 18, 2010 report, Dr. Borus report listed his findings on
physical and x-ray examination. He advised that knee conditions and resulting surgeries
aggravated his preexisting disc herniation. In a June 18, 2010 Form OWCP-5c, Dr. Borus
advised that appellant was unable to perform his regular work duties, but he could work eight
hours per day with restrictions.
Dr. Hoang N. Le, a Board-certified neurosurgeon, reported on April 6, 2010 that it was
unknown as to whether appellant’s knee surgery aggravated his lower back condition. It was
probably more likely that his disc herniation at L4-L5 was a result of his fusion at L5-S1. It was
unknown to Dr. Le as to how much of appellant’s leg discrepancy contributed to his lumbar
condition. Dr. Le advised that given appellant’s persistent hand weakness from his cervical disc
herniation, appellant was unable to return to any employment involving the use of his hand.
Also, he could not return to work for two to three months until his right L4-5 disc herniation for
which he was undergoing treatment could be rectified surgically. In an April 9, 2010 report,
Dr. Le reviewed the employing establishment’s March 17, 2010 modified job offer and advised
that appellant was not physically capable of performing the offered position.
In an April 14, 2010 Form OWCP-5c, Dr. Kim advised that appellant was totally disabled
for work due to his chronic low back pain with a pinched nerve and listed his physical
restrictions. In a June 18, 2010 report, he noted the worsening of appellant’s low back and right
knee pain since his authorized left knee arthroplasty. Dr. Kim advised that a surgical procedure
could cause biomechanical mismatch and dysfunction resulting in aggravation or worsening of
lower back pain and problems. He stated that appellant’s right knee condition was also worsened
by the added stress of the left knee surgery and increased use after surgery. Dr. Kim concluded
that his knee problems and altered gait contributed to his subsequent back problems.
Treatment notes and a report from appellant’s physical therapists addressed the treatment
of his right knee and back pain from July 29 through September 2, 2009.
In a December 22, 2009 report, Dr. Anthony S. Wei, a Board-certified orthopedic
surgeon, addressed a treatment plan following appellant’s left shoulder arthroscopic rotator cuff
repair, biceps tenotomy and decompression. In a June 9, 2010 report, he opined that the arthritic
symptoms of appellant’s accepted right knee injury caused his current left shoulder problems.
Dr. Wei recommended revision arthroscopic rotator cuff repair.
On May 4, 2010 appellant filed CA-7 forms for the period April 12 through May 9, 2010.
On May 26, 2010 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Richard G. McCollum, a Board-certified orthopedic surgeon, for a
second opinion regarding his claimed consequential back injury. In a June 18, 2010 report,
Dr. McCollum obtained a history of the accepted employment injury and appellant’s medical and
socioeconomic background. His current symptoms included right knee and back pain.

5

Dr. McCollum reviewed Dr. Kim’s March 19, 2009 report and stated that based on his surgical
experience, any length discrepancy would be very unlikely to be a reason for appellant’s back
pain. He listed his findings on physical examination and diagnosed bilateral knee osteoarthritis.
Dr. McCollum could not account for appellant’s right knee symptoms based on his normal
physical examination findings. He concluded that appellant was permanently disabled from
performing his regular work duties as an electronics mechanic due to his accepted injury. He
could not set forth his physical restrictions as he was only a couple of months post back surgery.
On July 8, 2010 OWCP found a conflict in medical opinion between Dr. Kim and
Dr. McCollum as to whether appellant’s current back condition was a consequence of his
accepted bilateral knee injury. On July 13, 2010 OWCP referred appellant, together with the
medical record and a statement of accepted facts, to Dr. Stephen J. Thomas, a Board-certified
orthopedic surgeon, for an impartial medical examination.
A June 30, 2010 electromyogram report from Dr. Matthew J. Gambee, a Board-certified
physiatrist, indicated that appellant had significant residual C8 radiculopathy of the right upper
extremity, moderate to severe carpal tunnel syndrome of the right hand and cubital tunnel
neuropathy of the right elbow.
In a July 30, 2010 decision, OWCP denied appellant’s request for reconsideration of his
recurrence of disability claim without reviewing the merits of the case. It found that the
evidence submitted was irrelevant and, thus, insufficient to warrant a merit review of his claim.
In an August 6, 2010 report, Dr. Thomas obtained a history of the accepted employment
injury and appellant’s medical treatment, family and socioeconomic background. The doctor
noted in detail his findings on physical examination. Dr. McCollum reviewed cervical x-rays
which showed a C6-7 fusion done with bone and a fusion and an anterior plate at C7-Tl. Lumbar
spine x-rays showed a narrow L5-S1 disc space and wide laminectomy defect at L5-S1. No
bilateral knee x-rays were available for review. Dr. Thomas diagnosed, among other things,
osteoarthritis status post total knee replacements bilaterally and degenerative arthritis of the
lumbar spine status post a 1988 L5-S1 fusion and April 2010 decompressive laminectomy. He
advised that the diagnosed degenerative arthritis back condition and resultant surgeries were not
caused, aggravated, precipitated or accelerated by his accepted bilateral knee injury. Appellant’s
described lumbar symptoms were consistent with degenerative disc disease. Dr. Thomas did not
have any documentation to support his contention that his left leg was three-fourths inches longer
than his right leg. He stated that both legs were currently of equal length. Dr. Thomas opined
that in all medical probability, appellant’s lumbar symptoms were a continuation of his
preexisting disease. There was no medical evidence that his knee surgery aggravated his back.
Rather, this was a continuation of his underlying disease for which he underwent major surgery
in late 1987 and 1988 and large laminectomy defect. Dr. Thomas concluded that appellant had
chronic back pain over the years and it gradually worsened which was consistent with his
underlying disease.
In a decision dated September 1, 2010, OWCP denied modification of its finding that
appellant did not sustain a consequential back condition causally related to his accepted injury.
It found that Dr. Thomas’ medical opinion was entitled to special weight accorded an impartial
medical specialist.

6

LEGAL PRECEDENT -- ISSUE 1
To require OWCP to reopen a case for merit review under section 8128 of the FECA,2
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS -- ISSUE 1
Appellant’s July 22, 2010 request for reconsideration of the March 18, 2010 OWCP
decision denying his recurrence of disability claim neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, he did not advance a
relevant legal argument not previously considered by OWCP. The Board finds that appellant is
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Garo’s April 13, 2010 report and Form OWCP-5c found that
appellant was totally disabled due to his cervical and lumbar problems. His June 30, 2009 and
April 13, 2010 reports found that appellant had uncontrolled and noninsulin dependent adult
onset Type II diabetes, unspecified osteoarthritis and lumbar and cervical radiculitis. The Board
has held that the submission of evidence which does not address the particular issue involved in
the case does not constitute a basis for reopening the claim.5 Dr. Garo did not provide an opinion
addressing whether appellant’s total disability commencing April 27, 2009 was causally related
to the accepted bilateral leg and knee osteoarthritis and authorized bilateral knee replacement
surgeries. The Board finds, therefore, that Dr. Garo’s reports are not relevant and are insufficient
to warrant reopening the case for a merit review.
Similarly, the medical reports from Dr. Boris, Dr. Le and Dr. Gambee are insufficient to
warrant a merit review of appellant’s recurrence claim. Dr. Boris’ July 20, 2009 report and
June 18, 2010 Form OWCP-5c are insufficient to warrant a merit review of appellant’s
recurrence claim. He advised that the accepted conditions and resultant surgeries aggravated his
preexisting disc herniation. Dr. Boris found that appellant was totally disabled for his regular
work duties, but he could work eight hours per day with restrictions. Dr. Le’s March 18 and
April 9, 2010 reports found that appellant could not return to work for two to three months until
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(1)-(2).

4

Id. at § 10.607(a).

5

D. Wayne Avila, 57 ECAB 642 (2006).

7

his right L4-5 disc herniation was treated surgically. Dr. Gambee’s June 30, 2010 diagnostic test
results addressed appellant’s cervical, and right hand and elbow conditions. None of the
physicians provided a medical opinion addressing the relevant issue of whether appellant’s total
disability commencing April 27, 2009 was due to the accepted injuries and resultant bilateral
knee surgeries and, thus, the Board finds that their reports are insufficient to reopen his claim for
further merit review.6
Dr. Wei’s December 22, 2009 report and the February 5, 2010 operative report predate
the claimed recurrence of disability in 2009 and, thus, are not relevant to the issue of whether
appellant sustained a recurrence of disability. The Board finds that this evidence is insufficient
to reopen appellant’s claim for further merit review.7
The treatment notes and reports from appellant’s physical therapists are of no probative
medical value as physical therapists are not considered physicians as defined under FECA and,
are not competent to render a medical opinion.8 As the underlying issue is medical in nature, the
physical therapy reports do not constitute relevant evidence.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his July 22, 2010 request for reconsideration.9
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.10
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of claimant’s own conduct
as an independent intervening cause. The basic rule is that a subsequent injury, whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable

6

Id.

7

Id.

8

See U.S.C. § 8101(2) (defining the term physician); A.C., Docket No. 08-1453 (issued November 18, 2008).

9

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).
10

Albert F. Ranieri, 55 ECAB 598 (2004).

8

so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.13
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 (known as
a referee physician or impartial medical specialist) who shall make an examination.14 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.15
ANALYSIS -- ISSUE 2
Appellant’s physician, Dr. Kim, opined that appellant’s preexisting chronic lumbar pain
was exacerbated by his authorized left knee surgery due to leg length discrepancy.
Dr. McCollum, an OWCP referral physician, opined that appellant’s back pain was not caused
by left leg length discrepancy. OWCP determined that a conflict of medical opinion arose as to
whether the authorized left knee surgery contributed to appellant’s back condition. It properly
referred appellant to Dr. Wainen, a Board-certified orthopedic surgeon, selected as the impartial
medical examiner. It properly referred appellant to Dr. Thomas, a Board-certified orthopedic
surgeon, selected as the impartial medical examiner.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Thomas. In an August 6, 2010 report, Dr. Thomas examined appellant, reviewed the medical
evidence of record and concluded that his degenerative arthritic back condition and resultant
back surgeries were not caused, aggravated, precipitated or accelerated by his accepted bilateral
knee injury. On physical examination, he reported essentially normal findings with the
exception of appellant’s inability to walk on his toes. Dr. Thomas found decreased range of
motion of the lumbar spine and hip with pain in the right knee and decrease sensation below the
knees to light touch on both legs. He also found that straight leg raising was 70 degrees
bilaterally with a negative dorsiflexion test and straight leg raising sitting was 90 degrees.
11

A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

12

J.J., Docket No. 09-27 (issued February 10, 2009).

13

Charles W. Downey, 54 ECAB 421 (2003).

14

5 U.S.C. § 8123(a); see S.T., Docket No. 08-1675 (issued May 4, 2009).

15

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

9

Dr. Thomas noted that appellant was unable to perform a sit up. He measured the proximal of
the patella which was had a 4-inch circumference and was 18½ inches bilaterally and the calf
circumference was 15 inches bilaterally. Dr. Thomas stated that leg lengths were measured
twice from the anterosuperior iliac spine to the umbilicus and were found to be 37 inches
bilaterally. Appellant had slight pain to palpation in the midline at L5-S1, but no pain over the
paraspinal muscles, sacroiliac joint or sciatic outlet. On examination of the bilateral knees,
Dr. Thomas reported essentially normal findings with the exception of decreased range of
motion, pain to palpation of the right knee along the medial and lateral distal femur and
increased warmth to palpation on the right knee compared to the left knee. He advised that the
results of diagnostic testing revealed a C6-7 fusion done with bone, a fusion and an anterior plate
at C7-Tl, a narrow L5-S1 disc space and wide laminectomy defect at L5-S1. Dr. Thomas opined
that appellant had osteoarthritis status post total knee replacements bilaterally and degenerative
arthritis of the lumbar spine status post a 1988 L5-S1 fusion and April 2010 decompressive
laminectomy. He stated that his lumbar symptoms were consistent with degenerative disc
disease. Dr. Thomas further stated that there was no documentation to support appellant’s
contention that his left leg was three-fourths inches longer than his right leg. He advised that
both legs were currently of equal length. Dr. Thomas opined that appellant’s lumbar symptoms
were a continuation of his preexisting disc disease. He explained that there was no medical
evidence establishing that his knee surgery aggravated his preexisting back condition.
Dr. Thomas concluded that appellant’s back condition was unrelated to the accepted conditions.
Instead, he was experiencing a gradual worsening of his underlying disease for which he
underwent surgery in 1987 and 1988.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Thomas. A reasoned opinion from a referee examiner is entitled to special weight.16 The
Board finds that Dr. Thomas provided a well-rationalized opinion based on a complete
background, his review of the statement of accepted facts and the medical record and his
examination findings. Dr. Thomas’ opinion, that appellant did not sustain a back condition due
to his accepted employment injuries, is entitled to special weight and represents the weight of the
evidence.17 Appellant did not submit any additional medical evidence in support of his
consequential claim following Dr. Thomas’ medical opinion.
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 OWCP properly denied appellant’s request for reconsideration of
the merits of his claim for total disability commencing April 27, 2009 pursuant to 5 U.S.C.
§ 8128(a). The Board further finds that appellant failed to establish that he sustained a
consequential back condition causally related to his accepted employment injury.

16

Id.

17

Id.

10

ORDER
IT IS HEREBY ORDERED THAT the September 1 and July 30, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 26, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gansevoort, NY, Employer
__________________________________________
Appearances:
Lawrence Elmen, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 16-1325
Issued: November 2, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On June 10, 2016 appellant, through counsel, filed a timely appeal of a December 21,
2015 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was
docketed as No. 16-1325.
The Board has reviewed the evidence on appeal and finds the case must be remanded to
OWCP. On November 17, 2015 OWCP issued a preliminary determination that an overpayment
of $95,128.32 was created from July 27, 2009 to October 23, 2011. It found appellant had failed
to disclose self-employment earnings as required on EN-1032 forms, and that he was at fault in
creating the overpayment. The preliminary determination included an OWCP-20 overpayment
recovery questionnaire and overpayment actions that could be requested, including a request for
a telephone conference.
By decision dated December 21, 2015, OWCP finalized its preliminary determination of
a $95,128.32 overpayment of compensation. It asserted that “no response has been received to
the preliminary decision.”
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.

On appeal, counsel argues that OWCP failed to properly consider evidence that was
submitted in response to the November 17, 2015 preliminary determination. A review of the
record indicates that on December 21, 2015, as established by the received date in the Integrated
Federal Employees’ Compensation System, OWCP received additional evidence. This evidence
included a request for a telephone conference dated December 16, 2015, and a completed
OWCP-20 overpayment recovery questionnaire dated December 16, 2015.
It is well established that OWCP must review all evidence submitted by a claimant and
received by OWCP prior to issuance of its final decision.2 This includes evidence that was
received on the same day as the issued decision.3 As the Board’s decisions are final as to the
subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim
which was properly submitted to OWCP prior to the time of issuance of its final decision be
addressed by OWCP.4
The record indicates that OWCP received relevant evidence on December 21, 2015, the
date of the final decision. OWCP did not review the evidence, and specifically indicated that no
response to the preliminary determination had been received. Accordingly, the case will be
remanded to OWCP to properly review the evidence of record. After such further development
as is deemed necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 21, 2015 is set aside and the case remanded for further
action consistent with this order of the Board.

2

William A. Couch, 41 ECAB 548 (1990).

3

Patsy R. Tatum, 44 ECAB 490 (1993); see also Linda Johnson, 45 ECAB 439 (1994).

4

Id.

2

Issued: November 2, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3