United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, LANCASTER
PROCESSING & DISTRIBUTION CENTER,
Lancaster, PA, Employer
__________________________________________

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

Docket No. 10-2308
Issued: September 28, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On September 15, 2010 appellant, through her attorney, filed a timely appeal of the
June 1 and July 15, 2010 merit decisions of the Office of Workers’ Compensation Programs
(OWCP) denying her recurrence of disability claim and claim for a consequential injury.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability
commencing September 11, 2007 causally related to her October 10, 2006 employment injuries;
and (2) whether she established that she sustained a cervical condition that warranted surgery due
to her accepted employment injuries.
On appeal, appellant’s attorney contends that the opinion of an impartial medical
specialist is not sufficient to carry the weight of the evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 10, 2006 appellant, then a 38-year-old part-time flexible
clerk, sustained employment-related left ulnar neuropathy and tenosynovitis of the left wrist in
the performance of duty. Following these injuries, she returned to limited-duty work on
August 13, 2007.
On October 27, 2007 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period October 14 through 15, 2007 as she attended medical examinations. On
November 1, 2007 she filed a Form CA-7 for the period October 24 through 26, 2007 for
medical treatment.
On October 22, 2007 appellant filed a claim (Form CA-2a) alleging that she sustained a
recurrence of disability commencing September 11, 2007 causally related to her October 10,
2006 employment injuries. She stated that she was performing light-duty work. A January 25,
2007 operative report indicated that appellant underwent left elbow anterior submuscular ulnar
nerve transposition with flexor pronator lengthening.
Medical reports dated December 13, 2006 through September 10, 2007 from
Dr. David G. Kuntz, Jr., a Board-certified orthopedic surgeon, advised that appellant had neck
pain, cervical radiculopathy, right cubital tunnel syndrome and the accepted left elbow ulnar
neuropathy. In a September 10, 2007 report, Dr. Kuntz explained how the C8 nerve went into
the same sensory distribution as the ulnar nerve which was a totally separate area of nerve
compression. He advised that appellant’s ulnar nerve had returned to normal electrical function
after her left elbow surgery. This was very good news as the ulnar nerve had recovered
electrically and ulnar nerve damage had been reversed. Dr. Kuntz advised that the cervical
radiculopathy was not related to appellant’s work duties, but instead it was related to a
degenerative spine process that occurred typically in humans that age. Since he was not a
cervical spine expert, he recommended that appellant undergo evaluation by a neurosurgeon.
In diagnostic test reports dated April 23 and June 23, 2007, Dr. Tony T. Ton-That, a
Board-certified physiatrist, and Dr. Maurice C. Perry, a Board-certified radiologist, respectively,
indicated that a cervical magnetic resonance imaging (MRI) scan and electromyogram/nerve
conduction study (EMG/NCS) revealed left C8 radiculopathy, degenerative disc disease at C5C6 and C6-7 which had progressed at the C5-C6 level since a prior MRI scan and diffuse
posterior disc osteophyte complex at this level associated with mild narrowing of the spinal canal
which had increased slightly in degree in the interval. In a June 22, 2007 narrative report,
Dr. Ton-That reviewed a history of the October 10, 2006 employment injuries and appellant’s
medical treatment. He listed his findings on physical examination of the neck and left upper
extremity. Dr. Ton-That ordered an EMG to rule out peripheral neuropathy versus cervical
radiculopathy.
In a June 5, 2007 report, Dr. Perry J. Argires, a Board-certified neurologist, obtained a
history of the October 10, 2006 employment injuries and appellant’s medical treatment, family
and social background. He listed findings on physical, neurological and diagnostic examination.
Dr. Argires advised that appellant had left ulnar neuropathy and neck pain related to a C5-6
herniated disc. He further advised that her current neurologic deficits and measurable findings

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were not related to her C5-6 herniated disc. Appellant’s neck pain was related to that segment.
In a July 13, 2007 report, Dr. Argires discussed a treatment plan for appellant’s cervical
radiculopathy and cervical disc herniations at C5-6 and C6-7. In a September 11, 2007 report, he
placed her on light-duty work.
By letter dated November 16, 2007, OWCP requested that appellant submit factual and
medical evidence in support of her claim. It indicated that Dr. Kuntz released her to return to
full-duty work on September 17, 2007. OWCP stated that, based on the medical evidence
submitted, appellant appeared to be claiming that she sustained a cervical condition causally
related to the October 10, 2006 employment injury.
Hospital records indicated that appellant underwent left-sided C7-T1 interlaminar
epidural steroid injections under fluoroscopic guidance on October 24 and November 14 and 28,
2007 to treat her disc herniations at C5-C6 and C6-C7 with left upper extremity radicular pain.
In an October 2, 2007 report, Dr. Michael A. Weaver, a Board-certified anesthesiologist,
listed his findings on physical and neurological examination. He diagnosed herniated
interverterbral discs at C5-C6 and C6-C7.
In a December 21, 2007 decision, OWCP found that appellant did not sustain a
recurrence of disability commencing September 11, 2007. The medical evidence established that
she no longer had any residuals of her accepted October 10, 2006 employment injuries.
Appellant failed to submit any medical evidence to support her time lost from work on
October 14 and 15, 2007. Her lost time from work from October 24 through 26, 2007 was due to
her nonemployment-related cervical condition.
By letter dated January 14, 2008, appellant, through her attorney, requested an oral
hearing before an OWCP hearing representative and submitted additional evidence.
In a June 13, 2007 report, a physical therapist addressed the treatment of appellant’s pain
and numbness in the left upper extremity.
In a June 22, 2007 report, Dr. Ton-That compared the results of an EMG/NCS performed
on that date and on November 8, 2006. He found electrodiagnostic evidence of left C8
radiculopathy. There was no electrodiagnostic evidence suggestive of left median and ulnar
motor and sensory neuropathy.2
A February 5, 2008 report signed by Denise Wechter, a certified registered nurse in
Dr. Argires’ office, noted the October 10, 2006 employment injury and stated that appellant
developed neck and left upper extremity radicular pain. Ms. Wechter also had numbness in the
left upper extremity. She advised that appellant had disc herniations at C5-C6 and C6-C7 that
were causally related to her October 10, 2006 employment injuries.
2

The November 8, 2006 EMG/NCS revealed electrodiagnostic evidence suggestive of moderately severe left
ulnar motor neuropathy with evidence of nerve compression across the elbow and no evidence of severe axonal loss.
There was no electrodiagnostic evidence suggestive of left cervical radiculopathy, bilateral median motor and
sensory neuropathy or right ulnar motor and sensory neuropathy.

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In a partial report dated February 21, 2008, Dr. Robert W. Macht, a surgeon, listed
findings on physical and objective examination. He advised that appellant had ulnar nerve
entrapment at the left elbow and traumatic injury to her neck with disc injury. Dr. Macht further
advised that she did not have any radiculopathy. He concluded that appellant’s neck condition
was due to her October 10, 2006 employment injuries.
In a March 13, 2008 disability certificate, Dr. Argires noted that appellant underwent
cervical surgery on March 12, 2008. It was undetermined as to when she could return to work.
In an August 22, 2008 decision, an OWCP hearing representative set aside the
December 21, 2007 decision. The hearing representative found that, although the medical
evidence did not establish that appellant sustained a recurrence of disability causally related to
her October 10, 2006 employment injuries, it suggested a causal relationship between her
cervical symptoms and the accepted work injuries. The case was remanded for referral to an
appropriate medical specialist for a second opinion examination to determine whether appellant’s
herniated discs at C5-6 and C6-7 and neck pain were caused by her accepted employment
injuries. The hearing representative stated that the medical specialist should also determine
whether the March 12, 2008 neck surgery was warranted and necessary as a result of the
accepted work injuries and January 2007 left elbow surgery. Lastly, the hearing representative
stated that the medical specialist should determine the extent and duration of any disability.
On September 9, 2008 OWCP referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon.
In a September 30, 2008 report, Dr. Draper obtained a history of the October 10, 2006
employment injuries and appellant’s medical treatment, social, educational and family
background. He listed his findings on physical examination of the cervical spine and bilateral
upper extremities. Dr. Draper diagnosed left cubital tunnel syndrome (ulnar nerve entrapment of
the left elbow) and degenerative cervical disc disease at C5-C6 and C6-C7. He indicated that
appellant was status post a January 2007 anterior transposition of the ulnar nerve and anterior
cervical discectomy and fusion at C5-6 and C6-7. Dr. Draper opined that the ulnar nerve
entrapment condition was causally related to the October 10, 2006 employment injuries. He
noted that an EMG/NCS revealed that the accepted condition had resolved. Dr. Draper further
noted that appellant’s neck pain existed prior to the accepted employment injury and worsened
following her January 2007 surgery and required physical therapy. He advised that the onset of
her neck pain was not caused by physical therapy or the surgery. Dr. Draper opined that
appellant’s neck pain was causally related to preexisting degenerative disc disease at the stated
multiple levels. The neck surgery appeared to be warranted and necessary, but not causally
related to her work duties or the accepted conditions. Dr. Draper advised that appellant
continued to have residuals of the accepted left elbow condition, noting that her elbow had
limited range of motion and her left hand had weakness. He concluded that she would not reach
maximum medical improvement until January 3, 2009. Dr. Draper further concluded that
appellant could only perform light work with restrictions.
In a November 24, 2008 decision, OWCP denied appellant’s recurrence claim, finding
that her cervical condition and resultant surgery were not causally related to her October 10,
2006 employment injuries based on Dr. Draper’s medical opinion. It also found that the

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diagnostic evidence established that her employment-related left nerve entrapment condition was
no longer present.
On December 16, 2008 appellant, through her attorney, requested a telephone hearing.
In a March 2, 2009 report, Dr. James P. Argires, a Board-certified neurosurgeon, noted
appellant’s difficulty with her left forearm and hand. He advised that she had a cervical disc
osteophyte complex occurring as a result of her October 10, 2006 accepted conditions.
Appellant had preexisting degenerative changes that were aggravated by the accepted
employment injury. Dr. Argires concluded that the disc osteophyte formation was a result of that
aggravation. In an April 3, 2009 report, he advised that a March 31, 2009 EMG/NCS revealed
an ulnar nerve injury with axonal loss which was consistent with appellant’s history of injury.
There was nothing to suggest any injury to this nerve in the cervical region. In a May 4, 2009
report, Dr. Argires noted that appellant continued to have left upper extremity painful sensations.
Appellant could not work more than six hours a day. In a June 1, 2009 report, Dr. Argires noted
her left hand and forearm symptoms. He stated that nothing had changed. Dr. Argires
concluded that appellant’s condition may be permanent.
In a June 29, 2009 decision, an OWCP hearing representative set aside the November 24,
2008 decision. The hearing representative found a conflict in the medical opinion evidence
between Dr. Draper, Dr. Macht and Dr. James P. Argires regarding whether the October 10,
2006 employment injuries caused appellant’s cervical condition and surgery. The case was
remanded to OWCP for referral to an appropriate impartial medical specialist to resolve the
conflict. The hearing representative stated that the impartial medical specialist should address
the changes in diagnostic testing and the extent and duration of any work-related disability.
On August 6, 2009 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Thomas J. Green, a Board-certified orthopedic surgeon, for an
impartial medical examination. It asked him to provide whether there was a causal relationship
between appellant’s cervical condition and resultant surgery and the accepted October 10, 2006
injuries. OWCP also asked him to provide whether she had any residuals of the cervical
condition. Lastly, Dr. Green was asked to describe the extent and duration of any employmentrelated disability.
Dr. Green submitted an August 20, 2009 report in which he obtained a history of the
October 10, 2006 employment injuries and appellant’s medical treatment. On physical
examination, he noted that appellant overcame her distress and was able to cooperate fully with
the study. Upon standing from the sitting position, there was no evidence of impairment.
Appellant’s station and gait appeared to be normal. She was able to walk forward and backward
with equal ability without a limp. There was no asymmetry of the muscles of the legs.
Appellant was able to do a deep knee bend, single leg stance and toe and heel rises with equal
power, muscle tone and facility. She did show a bit of anxiety when asked to bend over as if to
pick up something from the floor. Appellant stated that doing so reproduced symptoms in her
neck and left upper extremity. Upon sitting on the examining table, her deep tendon reflexes in
the ankles and knees were symmetrical and normal. The deep tendon reflexes in the elbows and
wrists were all symmetrical and normal. Range of motion of the neck was normal in flexor,
extension, rotation and side bending. However, appellant experienced stiffness and wincing with

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pain on rotation at the extremes of motion right and left and bending side to side right and left.
The neck muscles showed no asymmetry or spasm. Range of motion in the shoulders was
normal. However, upon placing the hand in extension behind the back and pushing against
Dr. Green’s resistance, there was weakness and pain behavior on the left that was not present on
the right. There was also pain with the extremes of left shoulder motion, but it was very
functional and in the normal range. The drop sign was negative. There was no deltoid atrophy
or asymmetry. Rotation in the abducted position did not result in a significant clicking, crepitus
or pain. There was major tenderness of the epicondylar region of the left elbow along the course
of the transposed ulnar nerve. The scar and the cubital tunnel area were nontender. There was
some tenderness of the neurovascular bundle in the axilla and in the upper arm halfway down
toward the elbow. There was some mild tenderness proximally in the area of the anterior scalene
muscles. There was no adenopathy. There was a well-healed nontender scar in the neck from
the cervical procedure. Power grip and pinch and range of motion in the elbow were normal.
Wrists and fingers had normal range of motion. There was no evidence of static or dynamic
instability in the hands or wrists. There was no clawing or other neurologic manifestation of
muscle imbalance in the hand. The adductor muscle used for key pinch was present and normal
to palpation. Power grip was only slightly decreased in the left compared to the right, but
without significant atrophy of the forearm flexor muscles.
Dr. Green diagnosed chronic pain syndrome with anxiety, probable ulnar intraneural
fibrosis with residual impairment from the October 10, 2006 work-related injuries and mild
rotator cuff arthropathy. He stated that appellant was status post two-level cervical discectomy
and fusion. Dr. Green advised that her shoulder and cervical complaints were not causally
related to the accepted conditions. He noted the finding of Dr. Kuntz that appellant had a
progression of her cervical disc disease based on his comparison of MRI scans performed on
April 23, 2007 and in March 2001. Dr. Green stated that the findings of cervical spondylosis
with progression, over a six-year period was most compatible with a natural history of the
disease and not compatible with a work-related injury. There was no direct correlation, causal,
aggravation or precipitation of appellant’s cervical spine condition and the accepted conditions.
The accepted condition was ulnar neuropathy at the left elbow. The cervical spine condition was
an unrelated degenerative disease that had progressed and may in all probability contributed to a
double crush syndrome. Dr. Green agreed with Dr. Draper’s opinion that the cervical spine
pathology was entirely different and separate from appellant’s workers’ compensation claim and,
therefore, it could not be a part of her claim. He advised that she continued to suffer from
residuals of her work-related condition and subsequent failure of the surgery despite that being
an appropriate treatment modality. The objective findings for power pinch and power grasp
were minimally inhibited, however, appellant continued to have difficulty with weakness in her
hand and persistent numbness in the ring and little finger which prevented her from lifting more
than 10 pounds. Dr. Green stated that the prognosis for her complete recovery was poor. He did
not think that she would ever return to her normal preinjury status and, thus, she would not be
able to return to her previous job if it involved lifting 10- to 15-pound totes that were used in
mail sorting. Dr. Green expected that, if appellant continued to improve, then she would be able
to work up to eight hours per day as a mail sorter. He advised that her disability was primarily
due to her work-related injuries. Dr. Green noted that appellant’s nonwork-related cervical
degenerative disc disease and subsequent surgery would appear to have helped and may continue
to improve her physical limitations.

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In reports dated October 16 and 23, 2009, Dr. Randy A. Cohen, an osteopath, obtained a
history of the October 10, 2006 employment injuries and appellant’s medical treatment. He
noted her complaints of neck and left upper extremity pain and impairment. Dr. Cohen listed his
findings on physical examination and reviewed the results of the March 31, 2009 EMG/NCS.
He diagnosed probable ulnar intraneural fibrosis with residual impairment from the accepted
work injuries and muscle disorder. Dr. Cohen advised that appellant was status post two-level
cervical discectomy and fusion.
In a November 19, 2009 decision, OWCP found that appellant did not sustain a
recurrence of disability commencing September 11, 2007 or a cervical condition that required
surgical intervention due to her October 10, 2006 employment injuries. It found that Dr. Green’s
opinion constituted the special weight of the medical evidence.
By letter dated November 30, 2009, appellant, through counsel, requested a hearing.
In reports dated December 10, 2009 through March 9, 2010, Dr. Cohen noted appellant’s
continuing cervical and left elbow mild range of motion limitations and diffuse muscle
tenderness. He, however, stated that the neurological examination was nonfocal. Dr. Cohen
placed appellant off work until her sedation due to medication could be better controlled. He
later advised that appellant could not return to her regular work duties, but she might be able to
perform sedentary work if she were able to stay alert given her pain medication. Dr. Cohen
concluded that, for all intents and purposes, appellant was permanently and totally disabled for
work. In an April 6, 2010 report, he indicated that appellant wished to perform sedentary work.
On April 13 and May 4, 2010 Dr. Cohen advised that she could return to part-time light-duty
work with restrictions.
In a June 1, 2010 decision, an OWCP hearing representative affirmed the November 19,
2009 decision. The hearing representative found that the report of Dr. Green was entitled to
special weight and established that appellant did not sustain a recurrence of disability
commencing September 11, 2007 or a cervical condition causally related to her October 10, 2006
employment injuries.3
On June 11, 2010 appellant, through counsel, requested reconsideration.
In a July 15, 2010 decision, OWCP denied modification of the June 1, 2010 decision. It
found that the medical evidence submitted by appellant was insufficient to outweigh the special
weight accorded to Dr. Green’s impartial medical opinion.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
3

By decision dated June 9, 2010, OWCP denied appellant’s claim for compensation for the period March 13
through April 14, 2010. As appellant is not appealing from this decision, the Board will not address it. See 20
C.F.R. § 501.3(a).

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that caused the illness.4 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.6
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.7
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.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision as to whether appellant
sustained a recurrence of disability, in that there exists an unresolved conflict in medical opinion.
OWCP found that appellant did not sustain a recurrence of total disability commencing
September 11, 2007 due to a worsening of her accepted employment-related left elbow ulnar
neuropathy and tenosynovitis of the left wrist based on the medical opinion of Dr. Green, an
impartial medical specialist.

4

20 C.F.R. § 10.5(x).

5

Id.

6

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
7

James H. Botts, 50 ECAB 265 (1999).

8

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

9

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

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OWCP determined that a conflict existed between appellant’s attending physicians,
Dr. Macht and Dr. James P. Argires and Dr. Draper, an OWCP referral physician, as to whether
appellant’s cervical condition and need for surgery were caused by the accepted
October 10, 2006. In order to resolve the conflict, it referred appellant to Dr. Green, for an
impartial medical examination. In an August 20, 2009 report, Dr. Green listed his findings on
physical examination and diagnosed chronic pain syndrome with anxiety, probable ulnar
intraneural fibrosis with residual impairment due the October 10, 2006 employment injuries and
mild rotator cuff arthropathy. He stated that appellant was status post two-level cervical
discectomy and fusion. Dr. Green found that she continued to have residuals of her accepted
conditions. He stated that appellant could not return to her date-of-injury position, but related
that, if her condition continued to improve, then she could work up to eight hours per day with
restrictions as a mail sorter. Dr. Green found that her cervical spondylosis, which had progressed
over a six-year period, was not work related as it was compatible with a natural history of the
disease. He concluded that appellant’s disability was primarily work related. The Board finds
that OWCP’S reliance on Dr. Green’s opinion in denying appellant’s recurrence of disability
claim was misplaced given his opinion that appellant’s ongoing disability was employment
related. Further, although Dr. Green concluded that appellant’s disability was employment
related, he did not furnish sufficient rationale to support his opinion on causal relation. He did
not explain why her current disability was due to the accepted injuries. Moreover, Dr. Green did
not describe the extent and duration of any employment-related disability as instructed by
OWCP. For these reasons, the Board finds that Dr. Green’s report is of diminished probative
value.
In a situation where OWCP secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP may not regard the opinion as of no particular
significance, particularly where it is favorable to the claimant. Under such circumstances, it has
the responsibility to secure a supplemental report from the specialist for the purpose of correcting
the defect in his original report.10
The case will be remanded for OWCP to obtain clarification of Dr. Green’s opinion on
the causal relationship between appellant’s September 11, 2007 recurrence of disability and the
accepted employment injuries. If it is unable to obtain such clarification, then appellant should
be referred to another Board-certified specialist for an examination and an opinion on the issue
of whether the September 11, 2007 recurrence of disability was causally related to her accepted
employment injuries.11 After such further development of the case record as OWCP deems
necessary, it should issue a de novo decision on appellant’s recurrence claim.
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
10

See Richard L. West, 30 ECAB 691 (1979); April Ann Erickson, 28 ECAB 336 (1977).

11

See James P. Roberts, 31 ECAB 1010 (1980); Harold Travis, 30 ECAB 1071 (1979).

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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.12
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 the 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
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.13
A claimant bears the burden of proof to establish a claim for a consequential injury.14 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.15
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether appellant
sustained a cervical condition that warranted surgery due to her accepted employment injuries.
As noted, OWCP referred appellant to Dr. Green to resolve the conflict in the medical opinion
evidence between her attending physicians and the OWCP referral physician as to whether her
diagnosed cervical condition and resultant surgery were causally related to the October 10, 2006
employment injuries.
Dr. Green opined that appellant had not developed cervical spondylosis as a consequence
of her accepted injuries. He stated that the diagnosed condition had progressed over a six-year
period and was compatible with a natural history of the disease based on Dr. Kuntz’s comparison
of the April 23, 2007 and March 2001 MRI scan findings. Dr. Green advised that there was no
direct correlation, causal, aggravation or precipitation of appellant’s cervical spine condition and
the accepted conditions. He noted that the accepted condition was ulnar neuropathy at the left
elbow while the diagnosed cervical spine condition was an unrelated degenerative disease that
had progressed and may in all probability contributed to a double crush syndrome. Dr. Green
agreed with the opinion of Dr. Draper, the OWCP referral physician, that the cervical spine
pathology was entirely different and separate from appellant’s workers’ compensation claim and,
12

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

13

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

14

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

15

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

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thus, it could not be a part of her claim. The Board finds that Dr. Green did not provide
sufficient rationale to support his opinion that appellant’s cervical spondylosis was not caused by
her accepted injuries. He failed to explain how the diagnostic test results supported his opinion
that her cervical condition was part of a degenerative process rather than a result of the accepted
injuries. Dr. Green did not address whether appellant’s March 12, 2008 cervical surgery was
medically warranted due to the accepted conditions.
The Board finds that Dr. Green’s report is insufficiently rationalized to resolve the
conflict in medical opinion as to whether appellant developed cervical spondylosis that
warranted surgery as a consequence of her accepted injuries.16 Therefore, the case shall be
remanded to OWCP for a supplemental opinion, which provides clarification and elaboration.17
If Dr. Green is unwilling or unable to clarify and elaborate on his opinion, the case should be
referred to another appropriate specialist.18 After such further development as OWCP deems
necessary, an appropriate decision should be issued regarding this matter.
CONCLUSION
The Board finds that the case is not in posture for a decision as to whether appellant
sustained a recurrence of disability commencing September 11, 2007 causally related to her
October 10, 2006 employment injuries or as to whether she developed a cervical condition that
warranted surgery as a consequence of her accepted injuries.

16

Willa M. Frazier, 55 ECAB 379 (2004) (the Board has held that medical conclusions unsupported by rationale
are of little probative value).
17

See cases cited, supra note 10.

18

See cases cited, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the July 15 and June 1, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
development of the medical evidence in accordance with this decision.
Issued: September 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.I., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland Park, IL, Employer
__________________________________________

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

Docket No. 18-0634
Issued: January 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 1, 2018 appellant filed a timely appeal from a January 12, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated February 9, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2015 appellant, then a 53-year-old revenue officer, filed an occupational
disease claim (Form CA-2) alleging that on April 27, 2015 she first became aware that her right
hand arthritis was caused by her repetitive federal employment duties which include walking,
bending, twisting, writing, typing documents, lifting bags with files, and sitting due to prolonged
driving. She also noted that she was at work when she had “the accident” and the issues did not
arrive until after the accident.2
By development letter dated June 16, 2015, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It afforded her 30 days to
submit the necessary evidence.
OWCP received x-ray interpretations of appellant’s right arm, shoulder, and thumb dated
April 24 and July 8, 2015.
In June 1, 2015 report, Dr. Estella Hernandez, a Board-certified family practitioner,
diagnosed employment-related right carpal tunnel syndrome and osteoarthritis, based upon
physical examination findings.
A July 6, 2015 electromyography (EMG) study, signed by Dr. Engin Yilmaz, Boardcertified in neurophysiology, reported evidence of lower extremity sensory motor axonal, mild left
S1 and mild-to-moderate right L4-5 and (S1) chronic radiculopathy.
In a statement dated July 15, 2015, appellant reported that she was injured in a July 29,
2002 employment-related automobile accident. As a result of this event she alleged that she
sustained a brain injury as well as arthritis in her shoulders, back, hips, knees, legs, feet, and hands.
In a July 13, 2015 narrative report, Dr. Hernandez provided examination findings and
treatment. She related appellant’s account that she sustained a brain injury as the result of a workrelated automobile accident on July 9, 2015.3 Work-related diagnoses included right shoulder
pain and osteoarthritis, shoulder tendinitis, right knee pain and osteoarthritis, right hip pain and
osteoarthritis, lumbar pain and radiculopathy, lower back osteoarthritis, right wrist carpal tunnel
syndrome, right wrist osteoarthritis, right lower extremity injury, right lower extremity peroneal
tendinitis, lower extremity varicose veins, right knee osteoarthritis, right plantar fasciitis, and right
foot pain and osteoarthritis.
By decision dated September 2, 2015, OWCP denied appellant’s claim, finding that she
had not established that her diagnosed medical conditions were causally related to her accepted
work event(s).
In a report dated September 24, 2015, Dr. Hernandez reiterated his opinion that appellant’s
diagnosed conditions of right carpal tunnel syndrome and osteoarthritis were caused by her past
2

Under OWCP File No. xxxxxx466 OWCP accepted that appellant sustained a concussion due to a July 29, 2002
employment-related motor vehicle accident.
3

This appears to be a typographical error as the date of the accident is subsequent to the report date.

2

car accident while at work. She cited to the second edition of the American Medical Association,
Guides for Evaluation of Disease and Injury Causation in support of his causation opinion.4
On October 1, 2015 OWCP received appellant’s request for a review of the written record
by an OWCP hearing representative. Appellant also submitted a September 16, 2015 letter
describing her work duties and describing her July 29, 2002 employment-related automobile
accident. She contended that the July 29, 2002 accident caused permanent changes to her behavior
and thinking and impacted her ability to drive.
By decision dated February 9, 2016, an OWCP hearing representative affirmed the denial
of appellant’s occupational disease claim. She found that the evidence submitted did not establish
causal relationship between a diagnosed medical condition and a specific factor of appellant’s
employment. Despite the affirmance, on remand OWCP was instructed to combine OWCP File
No. xxxxxx702 with OWCP File No. xxxxxx466 as appellant appeared to be claiming a recurrence
of disability under OWCP File No. xxxxxx466.5
In a letter dated June 15, 2016 and received on June 21, 2016, appellant detailed the duties
of her position and her medical conditions. She asserted that as a result of working 14 years as a
revenue officer she developed pain in her right knee, lower extremity, hip, shoulder, wrist, foot,
and right lower back.
On June 21, 2016 OWCP received physical therapy notes dated August 5 and
September 21, 2015 and an April 4, 2013 order for physical therapy.6
The record contains progress notes covering the period March 31, 2004 to February 12,
2016, which detailed appellant’s physical examination findings. OWCP also received a magnetic
resonance imaging scan dated August 19, 2015 and a January 23, 2016 computerized tomography
scan.
In a September 18, 21, 2015 report, Dr. Young-Il Ro, a Board-certified neurologist,
diagnosed abnormal brainstem auditory and left optic neuropathy. On September 21, 2015 he
diagnosed normal upper extremity somatosensory and abnormal lower extremity somatosensory,
which might indicated myelopathy. A December 11, 2015 letter from Dr. Ro, related that
appellant had been under his care since August 2015 for chronic headaches since a July 29, 2002
automobile accident.
In a narrative letter dated January 24, 2016, Dr. J. Michael Morgenstern, an orthopedic
surgeon, diagnosed unspecified leg peroneal tendinitis, plantar fasciitis disorder, peroneal
tendinitis disorder, right pes plantus, knee osteoarthritis, carpal tunnel syndrome, right hip joint
pain, lumbar radiculopathy, shoulder secondary osteoarthritis, shoulder tendinitis, right shoulder
4

A.M.A., Guides (2nd ed. 2014).

5

Supra note 2.

6

In a letter dated August 2, 2016, OWCP informed appellant that OWCP File No. xxxxxx702 and OWCP File No.
xxxxxx466 had been combined for administrative case management as instructed by OWCP’s hearing representative.
It advised that OWCP File No. xxxxxx466 was the master file number.

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lesion, concussion with loss of consciousness, and traumatic brain injury, right shoulder pain and
osteoarthritis, shoulder tendinitis, right knee pain and osteoarthritis, right hip pain and
osteoarthritis, lumbar pain and radiculopathy, lower back osteoarthritis, right wrist carpal tunnel
syndrome, right wrist osteoarthritis, right lower extremity injury, right lower extremity peroneal
tendinitis, lower extremity varicose veins, right knee osteoarthritis, right plantar fasciitis, and right
foot pain and osteoarthritis. He provided examination findings and attributed the diagnosed
conditions to the 2002 motor vehicle accident.
In a March 8, 2016 report, Dr. Roumen D. Blabanov, a treating Board-certified
neurologist, diagnosed multiple sclerosis.
Dr. Hernandez, in a letter dated June 13, 2015, noted that appellant had been under her care
since March 31, 2004 for head trauma sustained in a 2002 automobile accident. She observed that
since the accident appellant had experienced headaches and pain in her neck, back, right hip, knee,
hand, and first digit.
In June 27, 2016 progress notes, Dr. Michael Y. Ko, a Board-certified neurologist,
diagnosed multiple sclerosis and noted that appellant presented with cognitive issues.
On August 12, 2016 appellant requested reconsideration.
By decision dated January 12, 2018, OWCP found that the evidence of record was
insufficient to warrant merit review of the decision dated February 9, 2016 as the evidence
submitted with the request for reconsideration was irrelevant or immaterial and had no bearing on
the issue of causal relationship.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If OWCP chooses to grant reconsideration, it
7

5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
9

Id. at § 10.607(a).

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reopens and reviews the case on its merits.10 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that this case is not in posture for decision.
The last merit decision in this case was OWCP’s hearing representative’s decision dated
February 9, 2016. In that decision the hearing representative affirmed the denial of appellant’s
occupational disease claim as the evidence of record did not establish causal relationship between
a diagnosed medical condition and a specific factor of her federal employment.
Following the February 9, 2016 decision appellant submitted additional evidence and
argument. In a letter dated June 15, 2016, she detailed the duties of her position and her medical
conditions and argued that as a result of working 14 years as a revenue officer she developed pain
in her right knee, lower extremity, hip, shoulder, wrist, foot, and right lower back. Appellant also
submitted physical therapy notes, progress notes covering the period March 31, 2004 to
February 12, 2016, diagnostic studies, and reports from several attending physicians including
Drs. Ro, Morgenstern, Blabanov, Hernandez, and Ko.
On August 12, 2016 appellant requested reconsideration.
By decision dated January 12, 2018, OWCP found that the evidence of record was
insufficient to warrant merit review of the decision dated February 9, 2016 as the evidence
submitted with the request for reconsideration was irrelevant or immaterial and had no bearing on
the issue of causal relationship. This decision was issued 518 days after appellant’s request for
reconsideration. In order to preserve her right to timely request reconsideration, OWCP has a
timeliness goal for issuing reconsideration decisions within 90 days from the receipt of the
request.12 Its procedures provide that when a reconsideration decision is delayed beyond 90 days
and the delay jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review.13 As OWCP’s January 12, 2018 decision was issued more
than 90 days after it received appellant’s request for reconsideration, the question becomes whether
the delay has jeopardized her right to a review of the merits of the case by the Board. OWCP has
determined that there is no obligation to conduct a merit review on insufficient evidence if the
maximum 180-day time limit for requesting review by the Board will have expired within the 90day period following its receipt of the claimant’s reconsideration request.14 The Board has
considered whether the 180-day time limit for requesting review by the Board expired within the
10

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011).

13

Id. at Chapter 2.1602.7

14

Id.; see also C.L., Docket No. 10-1483 (issued May 12, 2011).

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90-day period following OWCP’s receipt of appellant’s reconsideration request.15 The Board finds
that because appellant filed her request for reconsideration on August 12, 2016, 185 days had
passed from the last merit decision and therefore an appeal to the Board would have been untimely
filed.
Under the facts of the present case, the Board finds that OWCP’s delay of 518 days in
issuing the January 12, 2018 nonmerit decision has impacted appellant’s ability to file a timely
request for reconsideration of the merits of her case under 5 U.S.C. § 8128(a). Had it issued the
decision within its 90-day timeliness goal, she would have had an additional 90 days to seek review
under the criteria set forth for a timely request for reconsideration with OWCP. Here, the delay
has precluded such further review and any further request for reconsideration would per se be
untimely as it would be filed more than one year following the February 9, 2016 merit decision.
The standard of review for an untimely request for reconsideration requires appellant to
demonstrate clear evidence of error. To demonstrate clear evidence of error she must submit
evidence relevant to the issue decided by OWCP which is positive, precise, and explicit and it
must manifest on its face that OWCP committed an error.16 To demonstrate clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflicting
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.17 The Board has repeatedly held that clear evidence of error is
intended to represent a difficult standard.18
The Board therefore finds that, under the facts of this case, the 518-day delay in issuance
of a reconsideration decision by OWCP has impacted appellant’s ability to submit additional
evidence or argument and bring a timely request for reconsideration before OWCP. This,
correspondingly impacts the review permissible by the Board. OWCP’s delay in issuing its denial
of reconsideration resulted in appellant being limited to filing an untimely reconsideration request
which, as explained above, is a much higher burden of proof. Therefore, the Board finds that this
case is not in posture for a decision. To preserve appellant’s right to file a timely request for
reconsideration, and to afford her the ability to present further evidence or argument to establish
her claim, this case will be remanded to OWCP for a merit review of the evidence of record
followed by an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See G.B., Docket No. 16-1485 (issued January 6, 2017).

16

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
17

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

18

P.L., supra note 16; W.R., Docket No. 09-2336 (issued June 22, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: January 23, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Washington, DC,
Employer
__________________________________________

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

Docket No. 13-167
Issued: March 12, 2013

Case Submitted on the Record

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

JURISDICTION
On October 31, 2012 appellant filed a timely appeal from a May 10, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from the last merit decision in this case, dated February 17, 2012, and the filing of
this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 11, 1998 appellant, then a 46-year-old building management specialist, filed a
traumatic injury claim alleging that on June 5, 1998 he injured his upper back and shoulder
picking up a stack of chairs. OWCP accepted the claim for lumbar sprain, cervical sprain, left
shoulder sprain, cervical disc displacement and cervical spondylolisthesis. Appellant underwent
an anterior cervical discectomy and fusion at C5-6 and C6-7 on May 10, 1999 and a revision of
the fusion at C4-5 and C5-6 on January 12, 2004.
By decision dated October 23, 2007, OWCP reduced appellant’s compensation to zero
based on its finding that his actual earnings as a building manager effective August 20, 2007
fairly and reasonably represented his wage-earning capacity.
In a decision dated February 17, 2012, OWCP denied appellant’s claim for compensation
for intermittent disability from September 3, 2007 through September 30, 2011. It determined
that the medical evidence was insufficient to show that he was unable to work during the claimed
periods due to his June 5, 1998 employment injury.
On March 20, 2012 appellant requested a telephone hearing. In a decision dated May 10,
2012, OWCP’s Branch of Hearings and Review denied his request for an oral hearing under
section 8124 as it was made more than 30 days after the February 17, 2012 decision. It exercised
its discretion and considered appellant’s request but determined that the question of whether he
had employment-related disability from September 3, 2007 through September 30, 2011 could be
addressed equally well through the reconsideration process.
On appeal appellant raises arguments regarding a 2007 medical report from a second
opinion physician. He asserts that he worked until May 2011 in extreme pain. Appellant relates
that he is unable to walk without assistance. He attributes his time missed from work to his
employment injury and requests approval for back surgery.
LEGAL PRECEDENT
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.2 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.3 The request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.4 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.5
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

See Leona B. Jacobs, 55 ECAB 753 (2004).

2

While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.6
ANALYSIS
In its February 17, 2012 decision, OWCP denied appellant’s claim for compensation for
intermittent dates from September 3, 2007 through September 30, 2011. On March 20, 2012 he
requested a telephone hearing. Appellant’s request was made more than 30 days after the
February 17, 2012 decision. Consequently, his hearing request was not timely and he was not
entitled to an oral hearing as a matter of right.7
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled to such as a matter of right. In its May 10, 2012 decision, it properly exercised its
discretion by notifying appellant that it had considered the matter in relation to the issue involved
and determined that additional argument and evidence could be submitted with a request for
reconsideration. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.8 The Board finds that OWCP did not abuse its discretion in
this case by denying a discretionary hearing.
On appeal appellant argued the merits of his case. As previously noted, however, the
Board does not have jurisdiction over the merits. The only issue before the Board is whether
OWCP properly denied his hearing request under section 8124.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely under section 8124.

6

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
7

20 C.F.R. § 10.616(a).

8

See Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2012 is affirmed.
Issued: March 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1445
Issued: January 12, 2017

Case Submitted on the Record

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

JURISDICTION
On July 5, 2016 appellant, through counsel, filed a timely appeal from an April 12, 2016
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.
ISSUE
The issue is whether appellant met her burden of proof to establish an employmentrelated injury on February 8, 2014.
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.

On appeal counsel asserts that the two incidents on February 8, 2014 occurred as alleged
and that the medical evidence of record establishes causal relationship.
FACTUAL HISTORY
On February 8, 2014 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1), alleging that she felt bad pain in front and around the back under the
shoulder blade of her right shoulder. She indicated that while performing work duties loading
her mail truck, she felt sharp pain and a burning sensation. Appellant stopped work that day.3 In
statements dated February 8, 2014, she described right shoulder pain that occurred while loading
her mail truck with regular, not heavy, parcels. Appellant indicated that she would like to see a
physician that day, Saturday, or could wait until Monday. On an authorization for examination
and/or treatment (Form CA-16) dated February 8, 2014, an employing establishment supervisor
authorized medical treatment.
Dr. Jeffrey G. Schlogl, Board-certified in emergency medicine, completed an emergency
department report on February 8, 2014. He noted a history that appellant reported right shoulder
muscle pain for the past month while lifting heavy parcels during the holiday season, and on that
day, while sitting in her vehicle reaching over some ice to get to a mailbox, she developed sharp
right anterior shoulder pain. Examination findings included tenderness along the top of the right
shoulder. Right shoulder x-ray that day was negative for fracture. Appellant was discharged to
home with a diagnosis of right shoulder tendinitis and advised not to work until seen by an
orthopedic surgeon. On a separate disability slip Dr. Schlogl advised that she should not work
for five days. Appellant did not return to work.
On March 17, 2014 appellant was seen by Dr. David B. Dickerson, a Board-certified
orthopedic surgeon, who noted a history that she was injured when a door hit the cart she was
using to load her mail truck. He described her complaint of pain with motion and examination
findings of tenderness and decreased range of motion of the right upper extremity.
Dr. Dickerson diagnosed bicipital tenosynovitis and rotator cuff impingement. He recommended
physical therapy and medication, and advised that appellant could not work until she could lift
more than 25 pounds.
By letter dated March 27, 2014, OWCP advised appellant that the evidence of record was
insufficient to establish her claim. It informed her of the evidence needed to establish her claim.
In an undated statement appellant explained that she initially had difficulty having her
claim filed with OWCP and was then unable to find an orthopedic surgeon who would take
OWCP patients until her March 17, 2014 appointment with Dr. Dickerson. She also submitted
aftercare instructions from the February 8, 2014 emergency department visit. Appellant also

3

The record contains one page of a handwritten Form CA-1 claim and a typed version. It also indicates that
appellant had two prior claims: (1) a February 5, 2004 claim for a left shoulder condition, adjudicated by OWCP
under File No. xxxxxx440 as a short form closure; and (2) a May 16, 2007 claim for a right shoulder condition,
back, and leg injury, adjudicated under File No. xxxxxx183 as a short form closure. The instant claim was
adjudicated under File No. xxxxxx742.

2

filed claims for compensation (Form CA-7) for the period March 25 to April 18, 2014. These
indicated that she received continuation of pay from February 9 to March 25, 2014.
On April 16, 2014 Dr. Dickerson noted that appellant’s right shoulder pain had improved.
He found tenderness and pain on right shoulder examination with full range of motion.
Dr. Dickerson reiterated his diagnoses, recommended a right shoulder magnetic resonance
imaging (MRI) scan, and advised that appellant could not work.
By decision dated April 29, 2014, OWCP denied the claim. It found that an employment
incident occurred on February 8, 2014, but that the medical evidence of record was insufficient
to establish a medical condition causally related to the employment event.
Appellant, through counsel, timely requested a hearing before an OWCP hearing
representative. In an April 24, 2014 statement, received by OWCP on April 29, 2014, she
indicated that on February 8, 2014, as she was leaving the building and pushing a mail cart out of
a set of heavy, swinging doors, her loaded cart got caught, and the sudden stop jarred her body.
Appellant recounted that she then adjusted the tub and pushed it through and, as she went out,
the door swung back and hit the tub. She related that her truck door was already open and that
when she picked up the first parcel to put it in the truck, she felt a sharp pain and burning
sensation between the back of her right shoulder and inside the right shoulder blade. Appellant
continued that she did not mention the door on her claim form because getting caught there, or
having them swing back and hit your tub, was a common, everyday occurrence. She indicated
that several years before her right shoulder hurt and she went to the emergency room where a
calcified spot was found on x-ray. Appellant advised that she did not see an orthopedic surgeon
immediately because she was not informed by the employing establishment regarding how to file
a claim, and that, in addition to continued pain, she also had diminished right shoulder range of
motion.
On April 30, 2014 Dr. Dickerson advised that appellant could not work. A May 7, 2014
MRI scan of the right shoulder demonstrated a full-thickness tear of the supraspinatus tendon and
calcific bursitis.
On May 20, 2014 appellant was seen by Dr. Anthony V. Petrosini, Board-certified in
orthopedic surgery. Dr. Petrosini noted a history that on February 8, 2014 a mail cart she was
pushing got caught in a door and, when she tried to push the cart, she felt right shoulder pain.
Right shoulder examination demonstrated limited range of motion and tenderness over the biceps
and greater tuberosity. Dr. Petrosini reviewed the MRI scan and diagnosed right shoulder rotator
cuff tear, biceps synovitis, and calcific tendinitis. He recommended arthroscopic repair.
Dr. Petrosini performed right shoulder arthroscopic repair of the supraspinatus tear,
excision of calcific tendinitis, and biceps tenotomy on June 3, 2014. On June 13, 2014 he noted
appellant’s report that she injured her right shoulder when loading a truck at work on
February 8, 2014. Dr. Petrosini continued that she was moving a cart in a doorway, and as she
tried to push the cart, she felt a sharp pain in the right shoulder. He described appellant’s
medical and surgical treatment and opined that her diagnosis and surgical findings, which
included a full-thickness rotator cuff tear, were related to the described work event. On
November 18, 2014 Dr. Petrosini advised that she could return to work on November 20, 2014.

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At the hearing, held on December 3, 2014, appellant testified that on February 8, 2014
she was rolling a tub of mail to her truck when it suddenly stuck in a doorway, and when she
pushed it through, the door swung back and hit the tub. She continued that, when she picked up
the first mail parcel, she had immediate pain and a burning sensation in her right shoulder.
Appellant noted returning to full-time, full-duty, work on November 20, 2014.
By decision dated January 26, 2015, an OWCP hearing representative affirmed the
April 29, 2014 OWCP decision. He found that, as conflicting histories of the employment injury
were presented to the physicians, the medical evidence was insufficient to establish causal
relationship.
On April 21, 2015 appellant, through counsel, requested reconsideration, and submitted
statements dated March 19, 2015 in which she and her daughter, who drove appellant to the
emergency room on February 8, 2014, described the events there. She maintained that
Dr. Schlogl recorded an incorrect history, claiming that she felt a severe, sharp pain with a
burning sensation as she was loading parcels into her truck.
In a nonmerit decision dated May 6, 2015, OWCP denied appellant’s request for
reconsideration.
On January 13, 2016 appellant, through counsel, again requested reconsideration and
submitted a January 7, 2016 report from Dr. Petrosini. Dr. Petrosini indicated that she reported
that the employment injury occurred while she was loading her mail truck on February 8, 2014,
and while pushing a cart of mail, it was caught in a door, and as she tried to push it through the
door, she felt a sharp pain in her right shoulder. He described the MRI scan findings and
appellant’s subsequent surgery on June 3, 2014. Dr. Petrosini noted that he had last seen her on
October 21, 2014. He observed that, since he had not seen appellant recently, he could not
comment on her current work status. Dr. Petrosini concluded “within a reasonable degree of
medical certainty that the need for surgery for her rotator cuff tear was directly related to
described work event.”
In a merit decision dated April 12, 2016, OWCP found the medical evidence inconsistent
regarding the February 8, 2014 employment incident and denied the claim.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also

4

J.P., 59 ECAB 178 (2007).

5

R.C., 59 ECAB 427 (2008).

4

establish that she sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.6
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. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.9 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.10
ANALYSIS
The evidence supports that, on February 8, 2014, appellant developed right shoulder pain.
The Board, however, finds that the medical evidence of record is insufficient to establish that
these incidents resulted in an employment injury.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.11 No physician did so in this case.
Dr. Schlogl, the emergency medicine physician who saw appellant on February 8, 2014
provided a history of right shoulder muscle pain occurring over the past month while lifting
heavy parcels during the holiday season. He indicated that on February 8, 2014, while she was
sitting in her vehicle and reaching over some ice to get to a mailbox, she developed sharp right
anterior shoulder pain. Dr. Dickerson provided a history that appellant was injured when the

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

T.H., 59 ECAB 388 (2008).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

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

11

D.D., Docket No. 13-1517 (issued April 14, 2014). See also Douglas M. McQuaid, 52 ECAB 382 (2001) (the
Board has long held that medical reports must be based on a complete and accurate factual and medical background,
and medical opinions based on an incomplete or inaccurate history are of little probative value).

5

door leading out of the building hit her mail cart. He did not further describe the circumstances
of or explain how a door hitting her mail cart caused the claimed right shoulder injury.
Likewise, Dr. Petrosini provided an insufficient history of injury. On May 20, 2014 he
reported that on February 8, 2014, appellant was pushing a mail cart that got stuck in a door, and
when she tried to move the cart, she felt pain in her shoulder. Dr. Petrosini noted MRI scan
findings and diagnosed rotator cuff tear. Following the June 3, 2014 surgery, on June 13, 2014
Dr. Petrosini first indicated that appellant injured her right shoulder on February 8, 2014 when
she was loading a truck, but then related that, as she was moving a cart in a doorway and tried to
push the cart, she felt a sharp pain in the right shoulder.
The Board finds that the May 7, 2014 MRI scan did not provide a cause of any diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.12
Thus, contrary to the assertions on appeal, these medical opinions are of diminished
probative value. Each describes a different history of injury and none provides the necessary
rationale explaining how and why the physician believes that the February 8, 2014 work
incidents could result in a diagnosed condition. The medical evidence is, therefore, insufficient
to establish that appellant’s diagnosed conditions were caused by the February 8, 2014
employment incident.13 It is appellant’s burden to establish that a diagnosed condition is
causally related to the February 8, 2014 incident. She submitted insufficient evidence to
establish an injury caused by this incident.
Where, as in this case, an employing establishment properly executes a Form CA-16,
which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, the CA-16 form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless
terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).
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 an
employment-related injury on February 8, 2014.

12

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

13

J.D., Docket No. 14-2061 (issued February 27, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 15-1690
Issued: January 7, 2016

Case Submitted on the Record

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

JURISDICTION
On August 5, 2015 appellant filed a timely appeal from a March 30, 2015 merit decision
and a May 27, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her right
upper extremity conditions were causally related to an October 15, 2014 employment incident;
and (2) whether OWCP properly denied appellant’s request for a review of the written record as
untimely.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 27, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that the evidence she submitted was sufficient to establish a
causal relationship and requests review of her claim.
FACTUAL HISTORY
On January 6, 2015 appellant, a 65-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that she sustained injuries to her right arm and shoulder on October 15, 2014 as a
result of being struck by an elevator door that closed suddenly. On the claim form the employing
establishment noted that the injury was sustained in the performance of duty, but was not
reported within 30 days following the incident.
In a January 21, 2015 letter, OWCP notified appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement dated January 29, 2015, an October 20, 2014
incident report, and emergency department hospital records dated October 20, 2014 diagnosing a
right shoulder and arm injury. She also submitted physical therapy notes dated December 19,
2014 and January 14, 2015.
In a report dated October 30, 2014, Dr. Barry Sheridan, a Board-certified emergency
medicine specialist, diagnosed cervical pain and right shoulder pain due to being struck by an
elevator.
On December 2, 2014 Dr. Grover Yamane, a Board-certified family practitioner,
diagnosed right shoulder pain and noted that on October 15, 2014 appellant’s right shoulder and
upper arm area experienced blunt trauma from an elevator door, which closed prematurely.
By decision dated March 30, 2015, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish a causal relationship between any diagnosed conditions
and the October 15, 2014 employment incident.
On April 30, 2015 appellant requested a review of the written record by an OWCP
hearing representative and resubmitted hospital records dated October 20, 2014 and physical
therapy notes dated January 14, 2015.
By decision dated May 27, 2015, OWCP denied appellant’s request for a review of the
written record finding that her request was untimely because it was not made within 30 days of
its March 30, 2015 decision. Appellant’s request was dated and postmarked April 30, 2015.
OWCP exercised its discretion and further denied the request for the reason that the relevant
issue of the case could be addressed by requesting reconsideration and submitting evidence not
previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
3

Supra note 1.

2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that her right
upper extremity conditions are causally related to an October 15, 2014 employment incident, as
alleged.
OWCP has accepted that the employment incident of October 15, 2014 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s right upper extremity
conditions resulted from the October 15, 2014 employment incident. The Board finds that she
did not meet her burden of proof to establish a causal relationship between the conditions for
which compensation is claimed and the employment incident.
In his October 30, 2014 report, Dr. Sheridan diagnosed cervical pain and right shoulder
pain due to being struck by an elevator door. The Board finds that his diagnosis of cervical pain
and right shoulder pain is a description of a symptom rather than a clear diagnosis of the medical

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008).

6

Id.

7

Id.

3

condition.8 Similarly, in a December 2, 2014 report, Dr. Yamane diagnosed right shoulder pain
and noted that on October 15, 2014 appellant’s right shoulder and upper arm area experienced
blunt trauma from an elevator door, which closed prematurely. Neither Dr. Sheridan nor
Dr. Yamane addressed how the closing of the elevator door on appellant’s arm caused or
contributed to a specific diagnosed medical condition. Moreover, the Board has held that the
mere fact that appellant’s symptoms arise during a period of employment or produce symptoms
revelatory of an underlying condition does not establish a causal relationship between her
condition and her employment factors.9 Therefore, the Board finds that these reports are
insufficient to establish that she sustained an employment-related injury.
Appellant further submitted an October 20, 2014 incident report, emergency department
hospital records dated October 20, 2014, and physical therapy notes dated December 19, 2014
and January 14, 2015. These documents do not constitute competent medical evidence as they
do not contain a physician’s opinion relating appellant’s diagnosed condition to the accepted
employment incident.10 As such, the Board finds that appellant did not meet her burden of proof
with these submissions.
As appellant has not submitted sufficient medical evidence to support her allegation that
she sustained an injury causally related to an October 15, 2014 employment incident, she has
failed to meet her burden of proof to establish a claim for compensation.
Appellant contends on appeal that the evidence she submitted was sufficient to establish a
causal relationship. For the reasons stated above, the Board finds her argument is not
substantiated.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the FECA provides: “Before review under section 8128(a) of this
title [relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a representative of the
Secretary.”11
Section 10.615 of Title 20 of the Code of Federal Regulations provide, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
9

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

10

See 5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208, 212 n.12 (2004).

11

5 U.S.C. § 8124(b)(1).

4

between two formats: An oral hearing or a review of the written record.”12 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.13 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.14 In such a case, it will determine whether
to grant a discretionary hearing and, if not, will so advise the claimant with reasons.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely.
Appellant had 30-calendar days from OWCP’s March 30, 2015 decision, or until
April 29, 2015, to request a review of the written record. Appellant’s request for a review of the
written record by an OWCP hearing representative was dated and postmarked April 30, 2015,
which was more than 30 days after OWCP issued its March 30, 2015 decision.16 Section
8124(b)(1) is unequivocal on the time limitation for requesting a hearing.17 Because the
application was untimely filed, appellant was not entitled to a review of the written record.
Appellant was not entitled to a review of the written record as a matter of right under
section 8124(b)(1) of FECA. Exercising its discretion to grant a review of the written record,
OWCP denied her request because she could equally well address her arguments by requesting
reconsideration. Because reconsideration exists as an alternative appeal right to address the
issues raised by OWCP’s March 30, 2015 decision, the Board finds that OWCP did not abuse its
discretion in denying appellant’s untimely request for a review of the written record.18
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
upper extremity conditions are causally related to an October 15, 2014 employment incident.
The Board further finds that OWCP properly denied her request for a review of the written
record as untimely.

12

20 C.F.R. § 10.615.

13

Id. at § 10.616.

14

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

15

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

16

Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4.a (October 2011). If the postmark is not legible, the request
will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
17

See William F. Osborne, 46 ECAB 198 (1994).

18

See Gerard F. Workinger, 56 ECAB 259 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the May 27 and March 30, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 7, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 08-594
Issued: June 6, 2008

Case Submitted on the Record

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

JURISDICTION
On December 18, 2007 appellant filed a timely appeal from the merit decisions of the
Office of Workers’ Compensation Programs dated May 9 and November 2, 2007 denying his
claim for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 31, 2007, as alleged.
FACTUAL HISTORY
On February 1, 2007 appellant, then a 42-year-old health technician, filed a traumatic
injury claim alleging that on January 31, 2007 she slipped and fell on a wet rubber mat in the
washroom and sustained injuries to her back, neck, right arm and left hip and a slight concussion.
She submitted a medical record from an emergency room visit on January 31, 2007.
Dr. Christine C. Bittner, a Board-certified internist, indicated that appellant fell in a washroom at

the employing establishment. She also noted that appellant was in a motor vehicle accident
several weeks earlier for which she was seeing a chiropractor. Dr. Bittner diagnosed “soft tissue
injuries 2/2 to fall this am.” Appellant also submitted a physician’s initial report, dated
February 1, 2007, from Dr. Steven T. Ryan, a chiropractor, who diagnosed lumbosacral radicular
syndrome, lumbar sprain, sacral subluxation and pelvic subluxation. He checked a box
indicating that the injury was caused by appellant’s work incident.
By letter dated April 6, 2007, the Office advised appellant that her chiropractor was not
considered a physician under the Federal Employees’ Compensation Act because he had not
diagnosed a subluxation by use of an x-ray. It informed appellant of the additional medical
information that was necessary for her to establish her claim. In response, she submitted
chiropractic notes dated from January 22 to March 26, 2007. In the January 26, 2007 note,
written before the January 31, 2007 injury, Dr. Ryan noted that appellant had “improved cervical
complaint middorsal myalgia.” On April 20, 2007 he indicated that no x-rays were obtained.
By decision dated May 9, 2007, the Office denied appellant’s claim.
By letter dated May 13, 2007, appellant’s attorney requested an oral hearing. At the
September 19, 2007 hearing, appellant’s counsel asked that the record be kept open for an
additional 30 days for the submission of further medical evidence. No additional evidence was
received by the Office within the 30-day period.
By decision dated November 2, 2007, the hearing representative affirmed the May 9,
2007 denial of benefits.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of her claim. When the employee claims injury in the performance of duty, she must
submit sufficient evidence to establish that she sustained a specific incident at the time, place and
in the manner alleged and that such incident caused an injury.2 The mere fact that a condition
manifests itself or worsens during a period of employment does not raise an inference of causal
relationship.3
To establish a causal relationship between an employee’s condition and an alleged
employment injury, appellant must submit rationalized medical opinion from a physician based
on a complete and accurate medical and factual background.4 The physician’s opinion must be
expressed in terms of reasonable medical certainty and must be supported by medical rationale

1

5 U.S.C. §§ 8101-8193.

2

See John W. Montoya, 54 ECAB 308 (2003).

3

See Louis T. Blair, 54 ECAB 348 (2003).

4

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

2

explaining the nature of the relationship between the diagnosed condition and the claimant’s
employment factors.5
ANALYSIS
Appellant alleged that she sustained injuries to her back, neck, right arm and left hip
when she slipped on a wet rubber mat in the washroom while working at the employing
establishment. The Office accepted that the employment incident occurred as alleged. The issue
on appeal, therefore, is whether appellant submitted sufficient medical evidence to establish that
she sustained an injury as a result of this accepted incident.
Appellant has failed to submit sufficient medical evidence that establishes that she
sustained an injury as a result of the accepted employment incident. She did seek medical
attention at the emergency room on January 31, 2007, the date of the alleged incident.
Dr. Bittner, the attending physician at the emergency room, assessed appellant with soft tissue
injuries due to the fall. The vague reference to “soft tissue injuries” without more by way of
medical rationale is insufficient to establish a compensable diagnosis.
Appellant also sought treatment from Dr. Ryan, a chiropractor. Section 8101(2) of the
Act provides that chiropractors are considered physicians only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation to correct a
subluxation as demonstrated by x-ray to exist.6 While Dr. Ryan diagnosed sacral subluxation
and pelvic subluxation, he specifically indicated that no x-rays were taken. In the absence of a
diagnosis of subluxation based on x-rays, he is not a “physician” under the Act.7 Since Dr. Ryan
is not a physician, his reports are of no probative medical value to the claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
her belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.8 As appellant failed to submit such evidence, the Office
properly denied her claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury on January 31, 2007, as alleged.

5

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

6

5 U.S.C. § 8101(2).

7

See Michelle Salazar, 54 ECAB 523 (2003).

8

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

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 2 and May 9, 2007 are affirmed.
Issued: June 6, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4