United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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

Docket No. 15-0614
Issued: June 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant filed a timely appeal from an August 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back condition causally related to the January 25, 2014 employment incident.
FACTUAL HISTORY
On January 25, 2014 appellant, then a 59-year-old mail carrier, filed a traumatic injury
claim alleging that he slipped on ice and fell in the performance of duty. He stated that on
January 25, 2015 at approximately 12:25 p.m., he was walking out the front door when he
slipped and fell hard on ice on the sidewalk. Appellant’s back hit the ground hard and he heard
1

5 U.S.C. § 8101 et seq.

an audible snapping sound. He partially broke the fall with his left palm and bruised it.
Appellant drove himself back to the employing establishment’s office and requested to go to the
emergency room. He stopped work on January 25, 2014.
Appellant was initially treated in the emergency room by Dr. Jeffrey Mayer, Boardcertified in emergency medicine. In a January 25, 2014 report, Dr. Mayer stated that appellant
was walking his route as a mailman when he slipped on ice and fell on his lower back. He
related that appellant heard a pop/crack sound and experienced pain. Dr. Mayer reviewed
appellant’s history and noted that he had a history of ankylosing spondylitis. Upon examination
of appellant’s lumbar spine, he observed tenderness and kyphosis. Dr. Mayer reported full range
of motion of the extremities and no tenderness. He reviewed appellant’s computerized
tomography (CT) scan of the lumbar spine and diagnosed chronic lower back pain.2 Dr. Mayer
concluded that appellant was a 59-year-old male with a history of ankylosing spondylitis who
fell at work and now had lower back pain.
On January 30, 2014 Dr. Jason A. Melnick, Board-certified in physical medicine and
rehabilitation, related appellant’s complaints of low back pain after a fall on Saturday. He noted
that appellant was a postal worker who slipped on ice and went to the emergency room.
Dr. Melnick noted appellant’s history of ankylosing spondylosis and increased thoracic kyphosis.
He reviewed appellant’s CT scan report which revealed degenerative disc changes and diffuse
osteopenia. Upon examination, Dr. Melnick observed tenderness to palpation of the thoracic
kyphosis and abnormal range of motion of appellant’s lumbar spine. Straight leg raise testing
and Patrick’s test were both negative. Dr. Melnick referred appellant to physical therapy. In a
work status note, he stated that appellant was unable to work until February 21, 2014.
In a letter dated February 20, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish his traumatic injury claim. It requested additional medical evidence
to demonstrate that he sustained a diagnosed medical condition as a result of the January 25,
2014 employment incident.
Dr. Melnick reexamined appellant on February 19, 2014 and related that he was doing
better since his fall last week, but still complained of nonradicular low back pain. He reviewed
the lumbar CT scan report and noted an old compression fracture and ankylosing spondylosis. In
a work status note, Dr. Melnick requested that appellant be excused from work until physical
therapy was approved.
On March 6, 2014 OWCP advised appellant via telephone that additional medical
evidence was needed as indicated in the February 20, 2014 development letter. Appellant stated
that additional medical evidence was sent. He also explained that he had a preexisting condition
that was aggravated by the January 25, 2014 fall.
In a decision dated March 26, 2014, OWCP denied appellant’s traumatic injury claim. It
accepted that the January 25, 2014 employment incident occurred as alleged, but denied the
2

In a January 25, 2014 CT scan examination of appellant’s lumbar spine, Dr. Sai C. Park, a Board-certified
diagnostic radiologist, observed mild-to-moderate degenerative disc disease at L2-3 and degenerative disc disease at
L3-4. He also noted compression deformity of L1 body with no retroversion, which he stated may be chronic in
nature.

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claim finding insufficient medical evidence to demonstrate that he sustained a diagnosed
condition causally related to the incident.
In a May 21, 2014 statement, received by OWCP on May 27, 2014, appellant requested
reconsideration. He stated that Dr. Melnick provided medical evidence of a causal relationship
between his injury and the January 25, 2014 fall on ice. Appellant also reported that his
physicians recommended a thoracic x-ray and physical therapy. He explained that it was a
financial burden on himself and his family to pay for all his medical expenses out of pocket and
to pay back the initial 45-day waiting period.
In a handwritten April 18, 2014 work status note, Dr. Melnick reported that appellant was
unable to work. He reevaluated him on May 6, 2014 and stated that he was undergoing physical
therapy three times a week. Dr. Melnick opined that appellant should improve and make a full
recovery through physical therapy.
Appellant was also examined by Dr. Andrew M. Peretz, a Board-certified orthopedic
surgeon. In an April 24, 2014 report, Dr. Peretz stated that appellant was improving from his
fall, but continued to have some right lower lumbar pain. He reported that a CT scan showed
that appellant had ankylosing spondylitis. Upon examination, Dr. Peretz observed that appellant
walked in a flexed position which was consistent with his ankylosing spondylitis. He diagnosed
right lower lumbar pain and opined that it appeared to be related to a fall.
In an April 25, 2014 narrative report, Dr. Melnick related that appellant was examined on
January 30, 2014 for low back pain following a slip and fall on ice on Saturday while at work as
a postal officer. He noted that appellant went to the emergency room where a CT scan was done
that revealed diffuse osteopenia, severe disc degeneration, and bony changes of ankylosing
spondylitis. Dr. Melnick reviewed the medical treatment appellant received. He also stated that
prior to the January 30, 2014 visit he had seen appellant two and a half years prior, in 2011,
when he was treated for nonradicular low back pain and ankylosing spondylitis. Appellant
received treatment for his ankylosing spondylitis and had not experienced back pain until his
January 2014 slip and fall. Dr. Melnick explained that at the time of his examination appellant
suffered from low back pain, ankylosing spondylitis, moderate degenerative disc disease with
severe posterior spurring, severe disc narrowing at L4-5, diffuse osteopenia, fusion of disc spaces
throughout the lumbar spine, and compression deformity likely chronic in nature. He found that
appellant had a “causal relationship of his new-onset acute low back pain to his fall on ice.”
Dr. Melnick explained that appellant was doing well from his back pain since his treatment and
the pain did not slowly return in time, but was explosive in nature after his fall. He noted that at
the time of the January 2014 injury appellant had not had any back pain in the three years prior
to that fall.
Dr. Melnick reported in a July 3, 2014 work status note that appellant had a procedure for
his back and would return to work on July 11, 2014.
By decision dated August 20, 2014, OWCP denied modification of the March 26, 2014
denial decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
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.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.9
Under FECA, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.10 Where the medical evidence supports an aggravation or acceleration of an
underlying condition precipitated by working conditions or injuries, such disability is
compensable.11 However, the normal progression of untreated disease cannot be stated to
constitute aggravation of a condition merely because the performance of normal work duties
reveals the underlying condition.12 For the conditions of employment to bring about an
aggravation of preexisting disease, the employment must cause acceleration of the disease or
precipitate disability. When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.13

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

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

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

Raymond W. Behrens, 50 ECAB 221 (1999); James L. Hearn, 29 ECAB 278 (1978).

11

A.C., Docket No. 08-1453 (issued November 18, 2008).

12

Glenn C. Chasteen, 42 ECAB 493 (1991).

13

Raymond W. Behrens, supra note 10.

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Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.14 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.15 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.16
ANALYSIS
Appellant alleged that on January 25, 2014 he injured his lower back and left palm when
he slipped on ice and fell down in the performance of duty. OWCP accepted that the incident
occurred as alleged, but denied his traumatic injury claim finding insufficient medical evidence
to establish that he sustained a diagnosed medical condition as a result of the employment
incident. The Board finds that appellant did not meet his burden of proof to demonstrate that he
sustained a diagnosed back condition causally related to the January 25, 2014 employment
incident.
The record reveals that in 2011 appellant was treated for low back pain that resulted from
ankylosing spondylitis. Appellant received medical treatment and reported that he did not
experience any more back pain until the January 25, 2014 slip and fall at work. On March 6,
2014 he informed OWCP via telephone that his preexisting condition was aggravated by the
January 25, 2014 fall.
In support of his claim, appellant submitted various reports by Dr. Melnick dated
January 25 to April 25, 2014. Dr. Melnick provided an accurate history of the January 2014 slip
and fall at work and of appellant’s history of ankylosing spondylosis and increased thoracic
kyphosis. Upon examination, he observed tenderness to palpation of appellant’s thoracic
kyphosis and abnormal range of motion of appellant’s lumbar spine. Straight leg raise and
Patrick’s test were both negative. Dr. Melnick diagnosed low back pain, ankylosing spondylitis,
moderate degenerative disc disease with severe posterior spurring, severe disc narrowing at L4-5,
diffuse osteopenia, fusion of disc spaces throughout the lumbar spine, and compression
deformity likely chronic in nature. In an April 25, 2014 narrative report, he opined that appellant
had a “causal relationship of his new-onset acute low back pain to his fall on ice.” Dr. Melnick
noted that at the time of the January 2014 injury appellant had not had any back pain in the three
years prior to that fall. He further explained that appellant was doing well from his back pain
since his treatment and the pain did not slowly return in time, but was explosive in nature after
his fall.
The Board notes that Dr. Melnick provided an accurate history, findings on examination,
and a diagnosis of a back condition. Dr. Melnick opined that there was a causal relationship
14

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

15

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

16

James Mack, 43 ECAB 321 (1991).

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between appellant’s low back symptoms and the January 2014 slip and fall on ice. The Board
finds, however, that he did not provide sufficient medical rationale explaining how appellant’s
slip and fall at work aggravated his previous back condition or caused a new condition.17 The
only explanation that Dr. Melnick provided was that appellant was doing well before the fall and
had not experienced back pain until the January 2014 injury. He did not explain how the slip and
fall incident would have aggravated the preexisting back condition or caused any newly
diagnosed medical condition. The Board has held that an opinion that a condition is causally
related because the employee was asymptomatic before the injury is insufficient, without
sufficient rationale, to establish causal relationship.18
Appellant also received treatment in the emergency room by Dr. Mayer who related that
appellant had a history of ankylosing spondylitis and recently slipped on ice and fell on his lower
back. He conducted an examination and diagnosed chronic lower back pain. Dr. Mayer reported
that appellant was a 59-year-old male with a history of ankylosing spondylitis who fell at work
and now had lower back pain. Although he accurately described the January 25, 2014 slip and
fall at work and provided physical examination findings, he did not provide any diagnosis of a
back condition other than back pain.19 Furthermore, Dr. Mayer does not provide any opinion on
the cause of appellant’s back symptoms. The Board has held that 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.20 Likewise, Dr. Park’s January 25, 2014 CT scan diagnostic
report is also insufficient to establish causal relationship as he does not provide any opinion on
the cause of appellant’s back conditions.
In an April 24, 2014 report, Dr. Peretz noted that appellant was improving from his
injury, but continued to complain of right lower lumbar pain. He related that a CT scan showed
that appellant had ankylosing spondylitis. Dr. Peretz diagnosed right lower lumbar pain and
opined that it appeared to be related to a fall. The Board notes that he also failed to provide a
diagnosed condition, other than back pain. Furthermore, Dr. Peretz’s opinion that appellant’s
back symptoms “appeared to be” related to the January 25, 2014 incident is speculative in nature.
The Board has held that medical opinions that are speculative or equivocal in character are of
diminished probative value.21
On appeal appellant alleges that the evidence is sufficient to accept his claim. He
specifically quoted several paragraphs of Dr. Melnick’s narrative report as evidence of a causal
relationship. As stated above, however, Dr. Melnick’s reports lack the level of probative value
necessary and are thus insufficient to establish that the January 25, 2014 employment incident
caused his current back symptoms or aggravated his preexisting condition. An employee’s belief
17

Medical evidence that states a conclusion but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. See J.F., Docket
No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
18

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

19

The Board has held that pain is a description of a symptom, and not considered compensable medical diagnosis.
B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).
20

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., supra note 17; A.D., supra note 17.

21

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

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that the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.22 Causal relationship is a medical question that must
be established by probative medical opinion from a physician.23 As appellant failed to provide
such probative medical opinion in this case, the Board finds that he did not meet his burden of
proof to establish his claim.
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 his burden of proof to establish a back
condition as a result of the January 25, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2014 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Jennifer Atkerson, 55 ECAB 317 (2004).

23

W.W., Docket No. 09-1619 (June 2, 2010); David Apgar, supra note 8.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, LOS ANGELES DISTRICT
OFFICE, Las Vegas, NV, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2337
Issued: September 2, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant, through counsel, filed a timely appeal from an
August 10, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated medical benefits compensation
effective August 10, 2009.
FACTUAL HISTORY
On February 14, 2008 appellant, then a 54-year-old mediator, filed a traumatic injury
claim alleging that she injured her left knee on February 4, 2008 when she tripped and fell while
getting out of her chair. The Office accepted the claim for lumbar and neck sprains.1 Appellant
1

The Office assigned claim number xxxxxx873. On May 30, 2008 it noted that appellant had filed two prior
claims for back injuries which were denied.

stopped work on February 4, 2008 and returned to work on February 11, 2008. She stopped
work again on February 12, 2008 and has not returned. The Office paid wage-loss compensation
for the period March 25 to 31, 2008.
In a May 12, 2008 report, Dr. Steven A. Holper, a treating Board-certified physiatrist,
noted that appellant’s February 4, 2008 fall at work exacerbated a preexisting back condition.
He stated that appellant’s disabilities from her back injury limit her ability to walk around the
office or to and from the office as well as limit her ability to stand or sit for prolonged periods of
time.
By letter dated May 20, 2008, the Office noted receipt of appellant’s claim for wage-loss
compensation. It informed her that the medical evidence failed to establish that any disability
she had was causally related to the accepted employment conditions. Appellant was advised to
submit a detailed medical opinion with objective findings and given 30 days to provide this
information.
On June 5, 2008 the Office referred appellant to Dr. Aubrey A. Swartz, a second opinion
Board-certified orthopedic surgeon, to determine the nature of her condition, appropriate
treatment and the extent, if any, of disability.2 Dr. Swartz, in a June 16, 2008 report, noted that
appellant returned for another evaluation and that her complaints were unchanged. A physical
examination revealed no spasm, lumbar tenderness, appellant pulled her right leg away when
touched, pain on right straight leg raising at 20 degrees and pain on left straight leg raising at 40
degrees. Range of motion included 90 degrees lumbar flexion, 5 degrees lumbar extension, 15
degrees lateral flexion for both sides, 30 degrees bilateral rotation. Dr. Swartz concluded that
appellant no longer had any residuals from her accepted February 4, 2008 employment injury.
On July 14, 2008 the Office received a May 23, 2008 attending physician’s report from
Dr. Holper who reported an injury date of February 4, 2008 and indicated that appellant was
totally disabled for the period February 4 to May 30, 2008.
On July 15, 2008 the Office issued a notice of proposed termination of appellant’s
compensation benefits based upon the report of Dr. Swartz. It noted that at the time she was
referred to Dr. Swartz for a second opinion evaluation it was unaware of her prior medical
treatment with the physician. Thus, the Office considered Dr. Swartz’s opinion as that of a
treating physician and not an Office referral physician.
On July 25, 2008 Dr. Holper reviewed and provided comments on Dr. Swartz’s June 16,
2008 report. He concurred with Dr. Swartz’s opinion that appellant was capable of working with
restrictions, but disagreed with his conclusion that any aggravation caused by the February 4,
2008 employment injury had resolved. Dr. Holper opined that appellant sustained a permanent
aggravation of her preexisting back conditions as a result of the February 4, 2008 employment
injury. In support of this conclusion, he referenced abnormalities noted on magnetic resonance
imaging (MRI) scans taken before and after her fall and his physical examination of appellant.
2

Under claim number xxxxxx793, appellant submitted an April 29, 2008 report from Dr. Swartz in which he
concluded that any aggravation of her low back condition as a result of the alleged September 25, 2007 incident had
ceased as of January 30, 2008.

2

In an August 12, 2008 report, Dr. Holper noted that he had reviewed factual and medical
evidence included in Dr. Swartz’s report as well as the statement of accepted facts and questions
furnished by the Office. He reiterated his opinion that appellant sustained a permanent
aggravation of her preexisting conditions and not a temporary aggravation as Dr. Swartz opined.
Dr. Holper also noted that there was an objective worsening of her condition as seen by
comparing a January 15, 2008 MRI scan and a subsequent April 26, 2008 MRI scan. He opined
that appellant’s preexisting back condition caused her to be more susceptible for sustaining
permanent damage as a result of the February 4, 2008 employment injury. In concluding,
Dr. Holper opined that the employment injury “hastened the development of the underlying
condition because she now [has] more symptoms [than] she ha[d] prior to the accident.”
By decision dated August 21, 2008, the Office finalized the notice of proposed
termination, finding the evidence established that appellant no longer had any residuals or
disability from her accepted February 4, 2008 employment injury and terminated her
compensation benefits. It found the weight of the evidence rested with the Dr. Swartz’s reports
that her condition had resolved.
On August 26, 2008 appellant requested an oral hearing before an Office hearing
representative, which was held on December 9, 2008.
Subsequently appellant submitted a July 28, 2008 report by Dr. Barry R. Maron, an
examining Board-certified orthopedic surgeon, and a November 13, 2008 report by Dr. Holper.
Dr. Maron, based upon a review of Dr. Swartz’s April 29, 2008 report and an April 18,
2008 bone scan, concluded that Dr. Swartz’s report was flawed and contradicted by the April 18,
2008 bone scan. He concluded that appellant sustained a lumbar fracture as a result of the
February 4, 2008 employment injury and that she would require a minimum of three months
recovery.
In a November 13, 2008 report, Dr. Holper reviewed Dr. Swartz’s June 16, 2008 report
and noted his disagreement that there were no objective findings attributable to the February 4,
2008 employment injury or any continuing residuals. In support of this conclusion, he noted the
changes in an April 11, 2007 MRI scan with an MRI scan taken “after her fall of
[January] 5, [20]08.” Dr. Holper agreed with Dr. Swartz regarding appellant’s work restrictions.
By decision dated February 3, 2009, the Office hearing representative found the evidence
insufficient to terminate appellant’s medical benefits due to a conflict in the medical opinion
evidence. He noted that appellant’s claim had also been accepted for a cervical condition and the
record contained no medical opinion concluding that this condition had resolved or the
aggravation had ceased. The hearing representative also stated that as appellant was not
receiving wage-loss compensation benefits at the time the Office terminated her benefits they did
not have to be reinstated, but that the Office was to address the issue of whether appellant was
entitled to wage-loss compensation on and after March 31, 2008. He remanded the case to the
Office for referral to an impartial medical examiner to resolve the conflict in the medical opinion
evidence between Drs. Holper and Swartz on the issue of objective findings of any injury-related
disability.

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On April 9, 2009 the Office referred appellant to Dr. G. Mark Sylvain, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Drs. Holper
and Swartz on the issue of objective findings of any injury-related disability.
In a May 18, 2009 report, Dr. Sylvain, based upon a review of the medical, statement of
accepted facts and physical examination, concluded that appellant’s accepted lumbar and
cervical strains had resolved. He noted that appellant had a history of low back pain and had
exacerbations of her condition on August 14 and September 25, 2007 and February 4, 2008. A
physical examination revealed negative straight leg raising, 2+ biceps and brachioradialis upper
extremity reflexes and intact upper extremity motor response. Dr. Sylvain reported that
appellant “does tend to shift positions to seek position of comfort.” A review of the MRI scans
showed significant lumbar spine degenerative changes. Based upon his examination, Dr. Sylvain
diagnosed ongoing low back pain which was mechanical in nature. He opined that the
February 4, 2008 employment injury temporarily aggravated her ongoing low back pain.
Dr. Sylvain reported that he found no objective findings on examination and that the question is
when appellant returned to baseline following the February 4, 2008 employment injury. He
agreed with the recommendations made by Drs. Swartz and Holper as to appellant’s work
restrictions including flexible positions and flex time. Based upon his examination, Dr. Sylvain
opined that appellant’s cervical and lumbar condition had resolved to their prior baseline and that
“until her situation is resolved regarding work modifications, conflict will continue.” In
concluding, Dr. Sylvain opined that appellant’s lumbar and cervical strains had resolved and
there were no objective findings to support any residuals.
On July 9, 2009 the Office issued a notice proposing to terminate appellant’s
compensation benefits. It found the report of the impartial medical examiner, Dr. Sylvain,
established that appellant no longer had any residuals due to her accepted February 4, 2008
employment injury.
By decision dated August 10, 2009, the Office finalized the termination of appellant’s
medical benefits effective that day.3
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 It may not terminate compensation
without establishing that disability ceased or that it was no longer related to the employment.5
3

The Board notes that the Office has not issued a final decision on whether appellant was entitled to wage-loss
compensation after March 31, 2008; thus, this issue is in an interlocutory posture. As there is no final decision on
appellant’s entitlement to wage-loss compensation after March 31, 2008 the Board lacks jurisdiction to consider this
issue in the current appeal. 20 C.F.R. § 501.2(c); see E.L., 59 ECAB ___ (Docket No. 07-2421, issued
March 10, 2008); Linda Beale, 57 ECAB 429 (2006).
4

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); I.J., 59 ECAB ___ (Docket No. 07-2362, issued
March 11, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003); Fermin G.
Olascoaga, 13 ECAB 102, 104 (1961).
5

I.J., supra note 4; J.M., 58 ECAB 478 (2007); Elsie L. Price, 54 ECAB 734 (2003); Anna M. Blaine, 26 ECAB
351 (1975).

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The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
if there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.9 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.10
ANALYSIS
The Office determined that a conflict in medical opinion existed between Drs. Holper and
Swartz on the issue of objective findings of any injury-related disability and residuals and
referred appellant to Dr. Sylvain to resolve the conflict. The Board finds that the Office
improperly declared a conflict in medical opinion between Drs. Holper and Swartz.
In this regard, Dr. Holper served as appellant’s treating physician for the effects of the
February 14, 2008 employment injury. In issuing its July 15, 2008 notice of proposed
termination, the Office acknowledged that when it referred appellant to Dr. Swartz for a second
opinion evaluation, it was unaware that he had previously served as appellant’s treating
physician. It thus concluded that he was a treating physician and not an Office referral
physician. Nonetheless, in his February 3, 2009 decision, an Office hearing representative found
a conflict in medical opinion between Drs. Holper and Swartz regarding whether appellant had
any residuals resulting from the February 4, 2008 employment injury. As the disagreement arose
between two treating physicians and not between a treating physician and a physician for the
government as contemplated by 5 U.S.C. § 8123(a), the Board finds that there is no conflict in
medical opinion.11 Thus, Dr. Sylvain cannot be considered an impartial medical specialist and
his opinion does not have the special weight afforded to one. Since the Office based the
termination of appellant’s medical benefits on Dr. Sylvain’s medical report, the termination must
6

See T.P., 58 ECAB 524 (2007); J.M., supra note 5; Del K. Rykert, 40 ECAB 284 (1988).

7

A.P., 60 ECAB ___ (Docket No. 08-1822, issued August 5, 2009); Darlene R. Kennedy, 57 ECAB 414 (2006).

8

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008); Kathryn E. Demarsh, 56 ECAB 677
(2005); James F. Weikel, 54 ECAB 660 (2003); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, supra note 7.

10

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008); Sharyn D. Bannick, 54 ECAB 537 (2003);
Gary R. Sieber, 46 ECAB 215 (1994).
11

See e.g., C.M., 61 ECAB ___ Docket No 09-1268 (issued January 22, 2010).

5

be reversed as the Office has not met its burden of proof to terminate appellant’s medical
benefits effective August 10, 2009.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
medical benefits effective August 10, 2009.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2009 Office of Workers’
Compensation Programs’ decision is reversed.
Issued: September 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Brooklyn Heights, OH,
Employer
__________________________________________

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Appearances:
Lawrence Berger, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-961
Issued: November 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 7, 2011 appellant timely appealed the February 11, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on January 30, 2009,
causally related to his February 7, 2006 employment injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 49-year-old former Federal air marshal, has an accepted claim for left knee
sprain and torn medial meniscus, which occurred on February 7, 2006. He underwent three
partial medial meniscectomies; most recently on October 2, 2007, which OWCP approved.
Appellant received wage-loss compensation, as well as a schedule award for left lower extremity
impairment. He had been working in a limited-duty capacity due to his employment-related left
knee condition.2 Effective January 30, 2009, appellant resigned his position. According to the
notification of personnel action (OPM Standard Form 50), he resigned because of a “pending
termination for personal conduct.”3 However, appellant’s January 30, 2009 letter of resignation
stated that he resigned because he was unable to perform the essential duties of an air marshal
and the employer had recently denied a request for a reasonable accommodation under the
Rehabilitation Act.4 He stated that the denial of the reasonable accommodation request left him
“no choice but to resign effective immediately.” The same day he resigned, appellant filed a
claim for wage-loss compensation (Form CA-7) beginning January 30, 2009.
Prior to appellant’s resignation, OWCP had pursued a permanent limited-duty job offer
from the employer. While a permanent limited-duty job offer had not been extended, the
employer had expressed a willingness to continue providing appellant limited-duty work on a
temporary basis. On March 16, 2009 OWCP contacted the employing establishment and was
advised that, had appellant not resigned, his limited-duty assignment would have remained
available to him. Although the employer denied appellant’s request for a permanent limited-duty
position, it did not rescind his limited-duty assignment.
In a decision dated June 17, 2009, OWCP denied appellant’s claim for wage-loss
compensation beginning January 30, 2009. It found that he had successfully worked in a
modified position until he resigned on January 30, 2009. But for his resignation, the modified
position would have remained available. OWCP further found that appellant had not established
a change in his injury-related condition such that he could no longer perform modified duties nor
had there been a change in the nature and extent of the light-duty job requirements.
By decision dated December 23, 2009, the Branch of Hearings and Review affirmed the
June 17, 2009 decision.

2

Appellant’s most recent limited-duty job offer was dated November 12, 2008. His duties included: answering
the telephone while in a seated position (four hours); using a computer while in a seated position (two hours);
greeting visitors and signing for light deliveries (one hour); and performing other light duties within his limitations
(one hour). The physical requirements for the position were walking and sitting. The position was based on the
July 23, 2008 restrictions imposed by appellant’s physician, Dr. Antonio Rosario, a Board-certified orthopedic
surgeon, and endorsed by Dr. Alan H. Wilde, a Board-certified orthopedic surgeon and OWCP referral physician.
3

The employing establishment issued a notice of proposed removal on January 14, 2009 for off-duty misconduct
involving a February 27, 2008 motor vehicle accident. Appellant was immediately placed on administrative leave
pending written notification of a final decision.
4

The employing establishment denied appellant’s reasonable accommodation request on January 23, 2009. The
notice advised him that he had the right to request reconsideration within 10 days or he could file an Equal
Employment Opportunity complaint within 45 days if he believed he had been discriminated against.

2

Appellant requested reconsideration on October 27, 2010. He claimed he had been
denied due process, and that the job offers he had previously received were technically deficient.
Appellant argued that as a full-time employee, he should not have been offered a temporary
position. He also argued that OWCP failed to make a suitability determination, and it had not
properly verified that his position remained available.
OWCP reviewed the merits of the recurrence claim and denied modification by decision
dated February 11, 2011.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his 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 established physical limitations.6 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he was no longer able to perform the light-duty assignment.7
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.8 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.9 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.10
ANALYSIS
Appellant has not alleged nor demonstrated that his injury-related condition changed such
that he could no longer perform his limited-duty position. Additionally, he has not alleged, nor

5

20 C.F.R. § 10.5(x).

6

Id.

7

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

8

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
9

See Helen K. Holt, supra note 8.

10

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

3

does the record establish that the employing establishment altered the physical requirements of
his limited-duty assignment such that it exceeded his established physical limitations.
Appellant argued that the January 23, 2009 denial of his request to convert his temporary
limited-duty position into a permanent limited-duty position was a de facto withdrawal of his
limited-duty assignment. According to him, once the employer denied his request, he had no
alternative but to resign or suffer removal. The record does not demonstrate that the employing
establishment either explicitly or implicitly withdrew appellant’s limited-duty assignment. The
January 23, 2009 decision did not reference appellant’s limited-duty assignment. Moreover,
appellant had appeal rights which had yet to expire when he voluntarily resigned on
January 30, 2009. This was not a forced resignation, at least not as of January 30, 2009. Lastly,
the employing establishment advised OWCP on March 16, 2009 that but for appellant’s
resignation; his limited-duty assignment would have remained available. While this statement
does not reference that there was a conduct-related removal action pending at the time of
appellant’s resignation, he nonetheless has not demonstrated that the employing establishment
withdrew his limited-duty assignment by January 30, 2009.11 Accordingly, OWCP properly
denied appellant’s claim for wage-loss compensation beginning January 30, 2009.
CONCLUSION
Appellant failed to establish a recurrence of disability on January 30, 2009, causally
related to his February 7, 2006 employment injury.

11

Had the employing establishment removed appellant for misconduct, that action would not justify payment of
wage-loss compensation. See 20 C.F.R. § 10.5(x).

4

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-821
Issued: October 20, 2009

Case Submitted on the Record

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

JURISDICTION
On June 1, 2008 appellant, through her representative, filed a timely appeal from the
October 2, 2008 merit decision of the Office of Workers’ Compensation Programs, which denied
compensation on the grounds that the medical opinion evidence did not establish causal
relationship. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of this case.
ISSUE
The issue is whether any of appellant’s medical conditions are causally related to her
federal employment.
FACTUAL HISTORY
On June 20, 2006 appellant, then a 64-year-old mail processing clerk, filed a claim for
compensation alleging that her bilateral carpal tunnel syndrome, right trigger thumb, right
shoulder and aggravation of cervical disc herniations were the result of her repetitive duties at
work. In a decision dated October 16, 2006, the Office denied her claim on the grounds that the

medical evidence did not establish that the claimed medical conditions resulted from the
accepted events.
On March 2, 2007 Dr. Namir B. Kosa, a Board-certified internist, reported that he had
been seeing appellant since 1999. Appellant was diagnosed with spinal stenosis, degenerative
arthritis and lumbar disc herniation, tendinitis of the right shoulder, carpal tunnel syndrome and
right trigger thumb. Electrodiagnostic of the cervical spine showed disc osteophyte complex
C5-7 with mild narrowing of the central canal, moderate narrowing of the right neural foramen,
mild narrowing of C5-7, left neural foramen, partial congenital fusion of C3-4. Electrodiagnostic
testing of the lumbosacral spine showed disc herniation at L5-S1. However, electrodiagnostic
testing of the right upper extremity showed subcranial impingement with tendinitis. Dr. Kosa
addressed causal relationship:
“[Appellant’s] medical problems were caused and aggravated by repetitive
movement of her joints to her work at the [employing establishment]. I believe
with a reasonable medical certainty that [her] medical problems including her
carpal tunnel syndrome and cervical and lumbar spine disease, right shoulder
tendinitis, rotator cuff tear and trigger finger that needed to be treated surgically
are due to her repetitive movement of her joints due to her work at the [employing
establishment].”
In a decision dated April 6, 2007, an Office hearing representative affirmed the denial of
benefits. He found that, although Dr. Kosa provided an affirmative opinion that appellant’s
conditions were caused and aggravated by repetitive movement of her joints at work, he did not
address the duration and extent of the physical activities she performed or explain how such
physical activities caused or aggravated her conditions. On June 23, 2008 the Board affirmed.1
On June 30, 2008 appellant requested reconsideration and submitted Dr. Kosa’s
September 17, 2007 supplemental report. He stated:
“This letter is a clarification of any misunderstanding regarding my letter dated
March 2, 2007 in behalf of [appellant]. [Appellant’s] medical problems including
rotator cuff tear, trigger finger, right shoulder tendinitis, cervical and lumbar spine
disease were due to her repetitive movements of her joints due to the work at the
[employing establishment].
“I am aware of the long duration and the extent of the physical activity my patient
performed at work. These joint problems happen to people with long[-]standing
repetitive movements of the joints causing wear and tear and that is exactly what
[appellant] has been doing all these years at the [employing establishment].”
Dr. Kosa referred appellant to Dr. Joseph Shatouhy, an orthopedic surgeon, for
evaluation. On January 26, 2008 Dr. Shatouhy diagnosed cervical and lumbar disc degeneration

1

Docket No. 07-2365 (issued June 23, 2008).

2

with referred pain to the upper and lower extremities.
relationship:

He offered his opinion on causal

“It is conceivable that [appellant] may have sustained a transient irritation to her
cervical and lumbar areas during work activities, but she is suffering from
degenerative process of the cervical and lumbar spine with gradual progression of
the disease.”
In a decision dated October 2, 2008, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that the submitted evidence did not
provide a well-reasoned medical opinion based upon a proper background showing a causal
relationship between appellant’s conditions and factors of her federal employment.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7

2

5 U.S.C. § 8102(a).

3

John J. Carlone, 41 ECAB 354 (1989).

4

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

5

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

6

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

7

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

3

ANALYSIS
The Office does not dispute that appellant performed repetitive task in the performance of
her duties as a mail clerk. The question is whether those specific tasks caused or aggravated any
of appellant’s diagnosed medical conditions.
On the prior appeal, the Board affirmed the hearing representative’s April 6, 2007
decision. The hearing representative found that the opinion of Dr. Kosa, the internist, was
deficient as he did not indicate knowledge of the duration and extent of the physical activities
appellant performed or provide an explanation of how those physical activities caused or
aggravated her various medical conditions.
After the Board’s decision, appellant submitted Dr. Kosa’s September 17, 2007 report;
however, he does not correct the deficiencies noted. Dr. Kosa once again offered an affirmative
opinion that her various medical conditions were due to the repetitive movements of her joints at
work. This is the same as in his May 2, 2007 report, which was found not sufficient to establish
causal relationship.
Responding to one of the noted deficiencies, Dr. Kosa stated that he was aware of the
long duration and extent of appellant’s physical activities at work. However, simply stating that
he was aware of appellant’s work is not the same as demonstrating such familiarity with a
description of the physical demands of specific work activities. Further, Dr. Kosa’s general
observation that this is what happens to people who do repetitive movements is vague and not
addressed specifically to any factual matter relevant to appellant’s claim. He diagnosed spinal
stenosis, but he did not describe the nature of spinal stenosis or how specific duties appellant
performed at work caused or aggravated her condition or resulted in disability. Dr. Kosa did not
distinguish whether spinal stenosis may occur in the absence of repetitive movement, and if so,
what factual matters from appellant’s work would cause or contribute to her condition. He
diagnosed multiple medical conditions, but failed to provide explanation of how specific work
duties caused or aggravated each one. Suggesting that a condition is due to generally “wear and
tear” is not persuasive medical rationale.
Appellant’s representative contends on appeal that appellant has provided prima facie
evidence of an occupational injury. Dr. Kosa’s supplemental report is essentially duplicative of
his prior report, which was lacking in probative value. It does not sufficiently advance
appellant’s claim to warrant further development of the medical evidence by the Office.
Dr. Kosa’s opinion is further weakened by the referral to Dr. Shatouhy, an orthopedic
surgeon. He allowed only that it was “conceivable” appellant may have sustained a transient
irritation to her cervical and lumbar areas during work activities. Dr. Shatouhy appears to
attribute appellant’s conditions to a degenerative process of the cervical and lumbar spine with
gradual progression of the disease. His January 6, 2008 report does not support appellant’s claim
of aggravation on contribution with probative medical rationale.
Because the medical evidence does not establish the critical element of causal
relationship, the Board finds that appellant has not met her burden of proof. The Board will
affirm the Office’s October 2, 2008 decision to deny benefits.

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
claimed medical conditions are causally related to her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 2, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2009
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Gulfport, MS,
Employer
__________________________________________

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

Docket No. 12-1906
Issued: February 14, 2013

Case Submitted on the Record

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

JURISDICTION
On September 18, 2012 appellant filed a timely appeal from an August 17, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied his request for
reconsideration because it was untimely filed and did not establish clear evidence of error. As
there is no merit decision, regarding the issue on appeal, that was issued within 180 days of the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
1

20 C.F.R. § 501.3(e).

2

5 U.S.C. §§ 8101-8193.

On appeal appellant generally asserts that his case should be reviewed regarding denial of
schedule award and wage-loss compensation.
FACTUAL HISTORY
This case has previously been before the Board. In a November 15, 2010 decision, the
Board affirmed a September 29, 2009 and a January 4, 2010 merit decision of OWCP that denied
appellant’s claim for a schedule award.3 The law and the facts of the previous Board decision
are incorporated herein by reference.4
In May 18, 2012 correspondence, appellant asked that his case be reviewed because he
was in financial hardship. On August 2, 2012 he requested reconsideration. Appellant asked
that all old and new evidence be reviewed.
The record contains numerous medical reports submitted subsequent to OWCP’s last
merit decision dated January 4, 2010 during appellant’s claim for schedule award. These include
a February 23, 2010 electrodiagnostic study of the upper extremities, an April 9, 2012 magnetic
resonance imaging (MRI) scan of the cervical spine; reports from Dr. Henry Leis, a Boardcertified orthopedic surgeon, dated from March 3, 2010 to July 25, 2012; reports from Dr. Fani
Manney, a Board-certified neurologist, dated June 3 to September 2, 2010; reports from
Dr. Brian Tsang, Board-certified in anesthesiology and pain management, dated December 8,
2011 to July 19, 2012; reports from Dr. Eric Letonoff, a Board-certified osteopath specializing in
orthopedic surgery, dated January 12 and March 19, 2012; reports from Dr. Chelsea Grow, an
osteopath, dated January 19 and February 16, 2012; and reports dated April 18 to June 6, 2012
from Dr. Charles J. Winters, a Board-certified orthopedic surgeon.
By decision dated August 17, 2012, OWCP denied appellant’s reconsideration request on
the grounds that his request was untimely filed and that he failed to present clear evidence of
error on the part of OWCP.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.5
3

Docket No. 10-823 (issued November 15, 2010). On July 8, 2008 appellant, a materials handler, sustained
work-related sprains of the right elbow and forearm and right lateral epicondylitis while unloading pallets. He had
right arm surgery on February 16, 2009 and returned to modified duty on March 2, 2009. Appellant was removed
from his position for cause in April 2009. By decision dated September 29, 2009, OWCP denied the claim for
disability compensation. It noted that appellant returned to modified duty after the February 13, 2009 surgery and
was then terminated for cause and not due to his inability to perform his modified-duty assignment. This decision
was not appealed to the Board. In a separate decision dated September 29, 2009, OWCP denied appellant’s claim
for a schedule award on the grounds that the medical evidence did not establish a permanent impairment.
4

Appellant has an additional appeal before the Board of a July 26, 2012 decision denying his request for a
hearing. The appeal was assigned Docket No. 12-1699 and will be adjudicated separately.
5

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

2

When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that its final merit decision was in error.6 Its
regulations state that it will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation set forth section 10.607 of its regulations, if the claimant’s application for
review shows “clear evidence of error” on the part of OWCP.7 In this regard, OWCP will limit
its focus to a review of how the newly submitted evidence bears on the prior evidence of record.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.9
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.10 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.11
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of an existing schedule award. When a
claimant is asserting that the original award was erroneous, based on his or her medical condition
at that time, this is considered a request for reconsideration. However, a claimant may request a
schedule award or increased schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.12
6

Cresenciano Martinez, 51 ECAB 322 (2000).

7

20 C.F.R. § 10.607.

8

See Alberta Dukes, 56 ECAB 247 (2005).

9

Robert G. Burns, 57 ECAB 657 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 1.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
11

Nancy Marcano, 50 ECAB 110 (1998).

12

See B.K., 59 ECAB 228 (2007).

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ANALYSIS
The Board finds this case is not in posture for decision. There are two underlying merit
issues in the instant case. The first issue is whether appellant is entitled to a schedule award for
his accepted right upper extremity condition. As noted above, a claimant may request a schedule
award or increased schedule award based on evidence of a new exposure or medical evidence
showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.13 A review of the medical evidence in this case indicates that in a
September 15, 2010 report, Dr. Leis provided an impairment evaluation of appellant’s right
upper extremity in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).14 This report
has not been reviewed by OWCP. The Board therefore finds that OWCP erroneously issued a
denial of appellant’s request for reconsideration regarding appellant’s entitlement to a schedule
award under the clear evidence of error standard and the case must be remanded to OWCP. On
remand, OWCP should review and develop the medical evidence and issue an appropriate
decision regarding appellant’s request for a schedule award.
The second underlying issue is whether appellant is entitled to disability compensation.
By decision dated September 29, 2009, OWCP denied his claim for disability compensation. It
noted that appellant returned to modified duty following February 13, 2009 surgery and was then
terminated for cause and not due to his inability to perform his modified-duty assignment.15
Appellant did not request reconsideration of the September 29, 2009 decision regarding denial of
wage-loss compensation until 2012. The Board finds that as more than one year has elapsed
from the most recent merit decision of OWCP regarding this issue of disability compensation,
his request for reconsideration is untimely.16
The Board also finds that appellant failed to establish clear evidence of error regarding
this issue. On reconsideration appellant requested that OWCP reconsider whether he was
entitled to monetary compensation.
A review of the medical evidence regarding disability indicates that on March 3, 2010
Dr. Leis advised that appellant could return to limited-duty work.17 In “medical excuse” letters
dated May 24, June 21 and July 19, 2012, Dr. Tsang advised that appellant’s arm pain and
weakness prevented him from returning to his supply job. On April 18, 2012 Dr. Winters
advised that appellant was unable to return to work. He diagnosed a herniated cervical disc with
myelopathy, ulnar neuropathy, neck pain and cervical radiculitis, none of which are accepted
conditions. None of the medical evidence discusses the issue of total disability in
September 2009. Thus, this evidence could not show that OWCP committed clear evidence of
13

Id.

14

A.M.A., Guides (6th ed. 2008).

15

As previously noted in supra note 3, appellant did not file an appeal with the Board of this decision.

16

20 C.F.R. § 10.607(a).

17

Appellant was working light duty when he was dismissed for cause in April 2009.

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error in its September 29, 2009 decision on the issue of entitlement to disability compensation.
The Board further notes that appellant last filed a claim for wage-loss compensation on July 27,
2009 when he claimed wage loss for the period February 16 to July 27, 2009.
The term “clear evidence of error” is intended to represent a difficult standard, and the
argument provided here is not the type of positive, precise and explicit evidence which
manifested on its face that OWCP committed an error.18 As the evidence and argument
submitted are of insufficient probative value to shift the weight in favor of appellant and raise a
substantial question as to the correctness of the September 29, 2009 OWCP decision regarding
denial of wage-loss compensation, appellant has not established that OWCP committed error by
its August 17, 2012 decision.19 The Board therefore finds that in accordance with its internal
guidelines and with Board precedent, OWCP properly performed a limited review of the
argument and evidence submitted by appellant with his reconsideration request to ascertain
whether it demonstrated clear evidence of error in the September 29, 2009 decision denying
wage-loss compensation and correctly determined that it did not, and thus denied appellant’s
untimely request for a merit reconsideration on that basis.20
CONCLUSION
The Board finds that OWCP erroneously issued a denial of appellant’s request for
reconsideration of the denial of a schedule award under the clear evidence of evidence standard.
The Board further finds that, with regard to the issue of denial of wage-loss compensation,
appellant’s request for reconsideration was untimely filed and he failed to establish clear
evidence of error. OWCP, therefore, properly denied a merit review of his claim on that issue.

18

Robert G. Burns, supra note 9.

19

Nancy Marcano, supra note 11.

20

20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: February 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Northport, NY, Employer
_________________________________________

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Appearances:
Timothy W. McLaughlin, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1201
Issued: September 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2015 appellant, through his representative, filed a timely appeal from an
April 13, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a knee injury in the
performance of duty on July 17, 2014.
FACTUAL HISTORY
On July 18, 2014 appellant, then a 63-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1). He alleged that on July 17, 2014 he sprained his left knee while walking
down a slope and turning to rake underneath bushes. Appellant stopped work on July 18, 2014.
1

5 U.S.C. § 8101 et seq.

On August 13, 2014 OWCP notified appellant that his claim was initially
administratively handled to permit medical payments, as it appeared to be a minor injury
resulting in minimal or no lost time from work. However, it advised appellant that his claim was
reopened for consideration of the merits because he had not returned to full-time work.
Appellant was instructed to submit a physician’s opinion supported by a medical explanation as
to how the reported work incident caused a diagnosed condition.
In a medical report dated July 17, 2014, Dr. Shenyi Peng, a Board-certified internist,
noted that appellant presented with left knee pain and related that he twisted his knee at work
while walking on a slope. Physical examination revealed no erythema, swelling, or reproducible
tenderness. Appellant displayed full range of motion in the left knee. Dr. Peng noted that x-rays
showed no acute change. He diagnosed knee pain.
In a July 17, 2014 x-ray report, Dr. Yudell Edelstein, a Board-certified diagnostic
radiologist, related that appellant was seen for left knee pain. He noted that appellant reported
twisting his knee. X-rays revealed mild lateral patellar tilt and minimal spurring at the lateral
patellar facet. No acute fracture or sizable joint effusion was perceived. Dr. Edelstein diagnosed
mild lateral patellar tilt.
Emergency room discharge documents dated July 17, 2014 indicated that appellant was
sent to a physical therapy clinic for an assistive device evaluation, issued a knee brace by a
prosthetist/orthotist, and then discharged. A July 17, 2014 duty status report (Form CA-17) with
an illegible signature diagnosed left knee pain and advised that appellant could perform regular
work as tolerated. In a July 18, 2014 duty status report (Form CA-17), Eleanor Hobbs, a nurse
practitioner, diagnosed medial meniscus tenderness. She indicated that appellant could return to
full duty on July 21, 2014.
In a July 28, 2014 prescription note, Dr. Joseph Said, an orthopedic surgeon,
recommended that appellant not return to work until his next evaluation. A prescription note
dated August 14, 2014 from Dr. Said related that appellant had suffered a meniscus injury, but
could return to work on August 21, 2014.
In an August 21, 2014 statement, appellant reported that he was walking down a slope to
rake some debris on July 18, 2014, and while making a left turn, he twisted his left knee.
On September 16, 2014 OWCP denied appellant’s claim finding that the medical
evidence was insufficient to establish a diagnosed condition in connection with the work-related
incident.
On October 15, 2014 appellant requested review of the written record before the Branch
of Hearings and Review.
In support of his request, appellant submitted an August 6, 2014 left knee magnetic
resonance imaging (MRI) scan report from Dr. Edelstein. Findings included a grade one sprain
of the medial collateral ligament, early underlying chondromalacia and subchondral edema, a
small intra-articular ganglion cyst posterior to the posterior cruciate ligament, and a focally
prominent intrasubstance signal within the posterior horn of the medial meniscus with fraying,
and possible tearing, of the interior surface. The test showed no evidence of fracture or abnormal
bone marrow signal.
2

Appellant also submitted September 25 and 30, 2014 physical therapy notes, signed by a
physical therapist, diagnosing left knee medial meniscus tear, popliteal cyst, and medial
collateral ligament sprain. The reports state that appellant reported planting and pivoting his left
knee while pruning bushes at work.
In October 9, 2014 progress notes, Steven Olster, a physician assistant, related that
appellant complained of left knee pain that he attributed to twisting while working. He
diagnosed medial collateral ligament sprain, medial meniscus tear, and early chondromalacia
medial tibial plateau. Mr. Olster advised light duty and increased physical therapy.
By decision dated April 13, 2015, an OWCP hearing representative affirmed the
September 16, 2014 decision, finding that the additional medical evidence was insufficient to
establish causal relationship.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,2 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.3 The employee must also
establish that he 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.4
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 he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

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

4

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

5

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

6

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

3

ANALYSIS
There is no dispute that appellant was walking down a slope at work on July 17, 2014 as
alleged. The issue is whether appellant submitted sufficient medical evidence to establish that
this incident caused an injury. The Board finds the medical evidence of record does not establish
a causal relationship between the July 17, 2014 incident and a diagnosed condition.
A July 17, 2014 medical report from Dr. Peng stated that appellant experienced left knee
pain from twisting his knee. Dr. Peng diagnosed knee pain. The Board notes that “knee pain” is
a symptom, not a medical diagnosis, and subjective complaints of pain are not sufficient, in and
of themselves, to support compensation benefits under FECA.7 Furthermore, Dr. Peng did not
offer his own opinion whether work activities caused or aggravated appellant’s knee condition.
In diagnostic reports dated July 17 and August 6, 2014, Dr. Edelstein noted x-ray and
MRI scan findings for appellant’s left knee. These included medial meniscus fraying with
possible tearing and a sprain of the medial collateral ligament. However, Dr. Edelstein’s reports
did not offer an opinion on whether the July 17, 2014 employment incident caused or aggravated
the diagnosed conditions. The Board has long held that medical evidence not offering any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.8
Dr. Said’s July 28 and August 14, 2014 prescription notes contain no opinion on the
cause of appellant’s condition. They are insufficient to establish appellant’s claim.9
Appellant also submitted evidence from prosthetists, nurse practitioners, and physical
therapists as well as reports with illegible signatures.10 This evidence is insufficient to establish
appellant’s claim as there is no indication that the persons completing the reports qualify as a
physician as defined in 5 U.S.C. § 8101(2).11
On appeal, appellant stated that he was providing new medical evidence signed by a
physician for the Board’s review. The Board is precluded from reviewing evidence that was not
before OWCP at the time it issued its final decision.12
7

20 C.F.R. § 10.501(a)(3); G.M., Docket No. 15-279 (issued April 2, 2015).

8

J.F., Docket No. 09-1061 (issued November 17, 2009).

9

Id.

10

The Board notes that the October 9, 2014 progress report indicates that Dr. Izhar Haque, an orthopedic surgeon,
was expected to cosign the report. However, Dr. Haque did not sign the report. Consequently, it has no probative
medical value. See infra note 11.
11

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2); L.B.,
Docket No. 13-1253 (issued September 18, 2013) (physician assistants, physical therapists, and physical therapy
assistants do not qualify as physicians under FECA and, therefore, their medical reports do not qualify as probative
medical evidence supportive, unless such medical reports are countersigned by a physician); Gary Ashe, Docket No.
94-271 (issued July 13, 1995) (a prosthetist/orthotist is not considered to be a physician under FECA).
12

See 20 C.F.R. § 501.2(c)(1).

4

Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left
knee condition was causally related to the July 17, 2014 work incident.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2015
Washington, DC

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

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

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

5


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

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

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

Case Submitted on the Record

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

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

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

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
3

Supra note 1.

4

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

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

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

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

8

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

9

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

10

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

11

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

12

Id.

13

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

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

14

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

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

16

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

17

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

18

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

5

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

19

Id.

20

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

21

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

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

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

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

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

7