United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.V., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER, SW, San Diego, CA,
Employer
__________________________________________

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

Docket No. 17-0973
Issued: July 19, 2018

Case Submitted on the Record

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

JURISDICTION
On April 3, 2017 appellant filed a timely appeal from a February 27, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish hearing loss
causally related to factors of his federal employment.
FACTUAL HISTORY
On September 1, 2016 appellant, then a 56-year-old pneudraulic systems mechanic, filed
an occupational disease claim (Form CA-2) alleging that his hearing loss was caused by factors
of his federal employment. He indicated that he first became aware of his loss of hearing on
January 23, 2015 and related it to factors of his federal employment on July 26, 2016. Appellant
explained that he noticed a loss of hearing over the two prior years, which was worsening. He
1

5 U.S.C. § 8101 et seq.

further explained that he worked around loud machinery and test equipment constantly while
wearing hearing protection. Appellant further explained that his delay in filing his claim was
because his supervisor was on vacation and he could not complete the form. He did not stop
work.
OWCP received a July 26, 2016 audiology report from Susan Fletcher, an audiologist.
Ms. Fletcher noted that the comprehensive audiometry report showed normal hearing to speech
for each ear. She explained that pure tones showed a borderline normal-to-mild sensorineural
hearing loss of 250 to 800 Hertz (Hz) for each ear. Ms. Fletcher explained that word recognition
was excellent in the left ear and good in the right ear. She also found tympanometry was normal
for each ear. Additionally, ipsi and contra acoustic reflexes were present at 500, 1,000, and
2,000 Hz for each ear. Ms. Fletcher determined that appellant was fit for duty and should
implement consistent use of hearing protection devices both on and off duty to prevent further
hearing loss. She recommended annual hearing screening to monitor hearing sensitivity.
Ms. Fletcher determined that appellant had unspecified sensorineural hearing loss.
By development letter dated September 6, 2016, OWCP requested additional information
from appellant. It explained that the evidence submitted was insufficient to establish that he
actually experienced the employment factors alleged to have caused the injury. OWCP
requested that appellant complete a questionnaire listing his employment history, exposure to
hazardous noise at work, the date he first noticed his hearing loss, and all previous ear or hearing
programs and hobbies involving exposure to loud noise. It did not request that he provide a
complete medical history form or submit past medical records. OWCP afforded appellant 30
days to submit the requested information.
In a separate letter to the employing establishment dated September 6, 2016, OWCP
requested details to include: the locations of appellant’s job sites where the alleged exposure
occurred; sources of exposure to noise and machinery; the decibel and frequency level (to
include a noise survey report for each job site and the period of exposure; and the types of ear
protection and noise attenuation in decibels if known. It also requested employment data and the
date of last exposure to hazardous noise, if no longer exposed to noise, and the pay rate in effect
on that date.
In a September 21, 2016 response to the questionnaire, appellant indicated that he had no
prior claims for hearing or ear conditions, nor did he have any hobbies which involved exposure
to loud noise. He explained that he worked for the employing establishment from January 7,
1985 to present as a pneudraulic mechanic on aircraft components for over 22 years at one site,
and 10 years at another site. Appellant was constantly surrounded by noises on test stands and
test equipment with other machinery in the pneudraulic shop while always wearing his ear
protection at all times for 8 to 10 hours a day, 5 to 6 days a week. He explained that they had
pneumatic tools and loud test equipment, which had loud noises and pitching sounds
continuously. Furthermore, appellant explained that he worked on cargo plane jet engines,
aircraft, and test stands that were loud for 16 years in the Air Force reserves. He noted that his
exposure to loud and noisy aircraft and test stands over a course of 40 years contributed to the
loss of his hearing, which was worsening as time went on. Appellant also noted that it was
difficult to listen to people talking and hear music or television. He explained that while he was
working in a noisy environment he wore hearing protection, but that did not prevent the loud
noises and constant ringing and humming sounds. Appellant indicated that, on February 15,
2

2014, he noticed his hearing was worsening and it was harder for him to hear, and he had
blockage and buzzing sounds. He noted that, on December 23, 2015, he had difficulty listening
and understanding while communicating with others and his hearing tests were getting worse and
declining as a result, as his records indicated. Appellant explained that he had hearing tests with
the employing establishment personnel physicians and that he planned to submit the audiogram
results to OWCP.
Appellant provided a copy of the July 26, 2016 audiogram from Ms. Fletcher, which was
illegible.
OWCP also received an August 16, 2016 e-mail from R.M., a safety and occupational
health specialist, who noted that he was providing notification that appellant had a shift in his
hearing. R.M. also noted that appellant could work without restrictions.
On November 14, 2016 OWCP contacted the employing establishment requesting a
position description, along with any audiograms or medical records from the agency hearing loss
programs.
In a November 17, 2016 e-mail, D.T., a supervisor, confirmed that appellant was exposed
to noise in the hydraulic shop and test room. He indicated that appellant was exposed to high-tomoderate decibel frequencies for 8 to 10 hours a day, 6 days a week, for 18 years in the present
shop. D.T. noted that appellant wore double hearing protection, earplugs, and earmuffs. He also
provided a position description, but noted no copy of his medical records.
On November 23, 2016 OWCP referred appellant, together with the medical record and a
statement of accepted facts (SOAF), to Dr. Theodore Mazer, a Board-certified otolaryngologist,
for a second opinion evaluation to include audiometric testing.
In a December 23, 2016 report, Dr. Mazer noted appellant’s history. He indicated that
appellant’s chief complaints were declining hearing since at least five years ago. Dr. Mazer
noted that he was seen at Kaiser Permanente four years ago, but no records were received, and
that appellant participates in a hearing conservation program and that he baseline had been reset
three to four times, but those records were not sent for review. He requested that, when they
became available, he would provide a supplemental report. Dr. Mazer also noted that appellant
complained of occasional ringing in the ears, which was always present. He explained that
appellant indicated that there was an “occasional ringing in the ears, always present.” When
Dr. Mazer asked appellant to clarify the description, he responded that it was there “on and off
continuously and fluctuating but annoying and not interfering with sleep or activities of daily
living.” He noted that appellant had vertigo a few years prior, with a negative medical
evaluation at Permanente Otolaryngology, treated with some pills. Dr. Mazer explained that he
used dual ear protection in noise and planned to retire in approximately two to three years. He
noted that appellant was also part of the hearing conservation program.
Dr. Mazer examined appellant’s ears and found that they were unremarkable. He
determined that tuning fork testing was normal, conversational speech understanding in a quiet
room was normal at normal volumes. Furthermore, there was no objective tinnitus on
auscultation, nor any bruits or murmurs. Regarding the audiometric evaluation, Dr. Mazer
advised that the audiogram was calibrated prior to the examination. He determined that internal

3

inconsistencies (speech discrimination scores were normal reflex levels and disparities compared
with July 2016 raised concerns about the accuracy responses to the test). Dr. Mazer opined that
the results showed bilaterally flat hearing loss, with the left greater than the right, through 3,000
Hz, with a mild down sloping loss above 2,000 Hz and minimal signs of noise notch on the right
ear at 3,000 Hz. He advised that the speech reception threshold was 20 decibels on the right, 40
decibels on the left, compared to 25 decibels in each ear only five months earlier. Dr. Mazer
determined that speech discrimination scores were below projected at only 64 percent on the
right, and 56 percent on the left, despite normal conversational observation and normal excellent
speech discrimination scores just five months earlier. He found that impedance and reflex
testing were within normal limits. Dr. Mazer determined that there was no elevation of reflexes
in either ear, highlighting possible exaggeration of pure tone responses. He diagnosed bilaterally
flat hearing loss with the left greater than the right. Dr. Mazer explained that the variation of
testing over just five months, from nonratable to ratable levels of loss and for symmetric loss to
left symmetry along with marked and out of proportion drop in speech discrimination scores
raises concern regarding accuracy of testing. He advised that it was not consistent with the usual
course of noise-induced loss to “suddenly accelerate after 30 years of reported exposure nor is
the low frequency loss consistent with noise[-]induced injury.” Dr. Mazer opined that “although
the current testing if used for ratings purposes would result in a ratable impairment not present
on testing should not be relied upon the rating purpose. In addition, any current loss would not
be permanent and stationary as he continues in the same noise exposure environment at work
with no immediate retirement plans.” He explained that appellant had a history of hearing loss
and tinnitus at the time of military discharge, absent any records from that time. Dr. Mazer
further explained that appellant had a history of nonwork-related dizziness, which may be related
to other ear conditions for which evaluation was done in 2014, for which records were not made
available for his review. He also explained that even if he accepted the current testing, “the
pattern of loss did not support occupational noise exposure.”
Dr. Mazer determined that under the current testing, and the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A., Guides),
appellant had monaural hearing losses of 11.25 percent on the right and 30 percent on the left,
for a combined 14.4 percent binaural hearing loss. He reiterated that he did not believe that the
current testing was an accurate reflection of appellant’s hearing level nor supportive of his
occupational injury. Additionally, Dr. Mazer determined that the tinnitus was preexistent and
did not raise a ratable level at this time, constituting a mere annoyance with nonspecific
descriptions of intensity and persistence. He opined that appellant’s hearing loss was not
permanent and stationary at this time. Dr. Mazer noted that his prior medical records, including
all of his hearing conservation testing or other hearing tests at work and from his prior
employers, should be forwarded for review and a supplemental report. He opined that there were
no work restrictions aside from usual hearing conservation. Dr. Mazer explained that there were
no work restrictions, aside from the usual hearing conservation. He recommended a repeat
hearing test in six months rather than a year in order to determine more accurately his hearing
status for any progression, especially given the reported changes since July 2016. Dr. Mazer
explained that, based upon the July 2016 testing, appellant was only a marginal candidate for
amplification. He noted that he did not recommend amplification at this time, at least until a

2

A.M.A., Guides (6th ed. 2009).

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subsequent testing to compare the two most recent tests. Dr. Mazer further explained that the
amplification would not be work related for the above-noted reasons.
By decision dated February 27, 2017, OWCP denied appellant’s claim. It denied the
claim because the requirements had not been met for establishing that he sustained an injury
causally related to the accepted work factors. OWCP explained that the reason for the finding
was that Dr. Mazer found inconsistencies in the testing and raised concerns regarding the
accuracy of responses to the testing. It determined that even when viewed in a light most
favorable to appellant, the medical evidence of record could not be construed as substantive,
reliable, and probative evidence that he sustained a work-related hearing impairment.
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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty, as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. Although it is the claimant’s burden of proof to establish his or her claim, OWCP shares
3

Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

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responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other government source.7 It
shares responsibility to see that justice is done.8
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a claim for occupational hearing loss and indicated that he first became
aware of his loss of hearing on January 23, 2015 and related it to factors of his federal
employment on July 26, 2016. He explained that he noticed a loss and worsening of his hearing
over the past two years. Appellant further explained that he worked around loud machinery and
test equipment constantly while wearing hearing protection. It is undisputed that appellant was
in a hearing conservation program with the employing establishment.
In the development of the claim the employing establishment was instructed to provide
audiograms or medical records from its hearing conservation program. No records were
provided by the employing establishment.
OWCP referred appellant to second opinion physician, Dr. Mazer, for an opinion
regarding whether he had developed sensorineural hearing loss due to his federal employment
duties. On December 23, 2016 Dr. Mazer examined appellant and reviewed the medical records
and noted that appellant’s chief complaints were declining hearing for at least the past five years.
He specifically noted that some of appellant’s records were unavailable. For example, Dr. Mazer
explained that appellant was seen at Kaiser Permanente four years prior for his hearing problems,
but no records were received relative to that medical treatment. Furthermore, he noted that
appellant was actively involved in the employing establishment’s hearing conservation program
and his baseline had been reset three or four times. Dr. Mazer indicated that he would provide a
supplemental report if provided with the additional records.
The Board finds that OWCP must further develop the factual aspect of this record.
Dr. Mazer advised in his second opinion report that appellant had received treatment relative to
his hearing with Kaiser Permanente approximately four years prior to the second opinion
examination and these records had not been provided for his review. Moreover, he noted that
while appellant was in the employing establishment’s hearing conservation program,
audiological and other records from that program were not provided for his consideration.
OWCP must develop this factual aspect of the case before a determination can be made
regarding causal relationship.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. Although it is the claimant’s burden of proof to establish his or her claim, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other government source.9 It
7

See R.A., Docket No. 17-1030 (issued April 16, 2018).

8

See S.P., Docket No. 11-1271 (issued April 19, 2012).

9

Supra note 7.

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shares responsibility to see that justice is done.10 OWCP shall obtain all relevant records from
the employing establishment’s hearing conservation programs and from appellant’s other known
medical providers and thereafter provide all relevant records it obtains to Dr. Mazer for a
supplemental report.11 Following this and any other factual development deemed necessary,
OWCP shall issue a de novo decision in the case.12
The case will be remanded for further factual development.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: July 19, 2018
Washington, DC

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

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

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

10

Supra note 8.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapters 2.800.4, 2.800.7,
2.800.8, and 2.800.10 (June 2011).
12
E.S., Docket No. 17-0601 (issued August 10, 2017); Phillip L Barnes, 55 ECAB 426 (2004); see also Virginia
Richard (Lionel F. Richard), 53 ECAB 430 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Jose, CA, Employer
__________________________________________

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

Docket No. 12-1273
Issued: November 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2012 appellant filed a timely appeal from a January 17, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
degenerative disc disease and bilateral knee sprains as a result of factors of her federal
employment.

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 17, 2012 OWCP decision, appellant submitted new
evidence. The evidence was not reviewed by OWCP at the time it issued its January 17, 2012 decision. Therefore,
the Board is precluded from reviewing the evidence as it was not before OWCP at the time it issued its final
decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 31, 2011 appellant, then a 48-year-old mail carrier, filed an occupational
disease claim alleging lower back and leg pain as a result of heavy lifting and carrying at work.
She first became aware of her condition and realized it resulted from her employment on
September 1, 2011.
In an October 25, 2011 work status report, Dr. Donna M. Hickox, a Board-certified
family practitioner, put appellant on modified duty from October 25 to November 8, 2011. She
restricted appellant to no lifting or carrying more than 15 pounds, no pushing or pulling more
than 30 pounds, no prolonged sitting, standing, walking, or repetitive bending, no walking over
three hours, and no sitting or standing over one hour.
On November 1, 2011 OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit a detailed description of the
employment activities that she believed caused her condition and respond to specific questions.
OWCP also requested that appellant submit a comprehensive medical report, including a
diagnosis, results of examinations and tests, and a physician’s opinion with medical rationale
explaining the cause of her condition.
In an October 6, 2011 progress note, Dr. James Nguyen, Board-certified in physical
medicine and rehabilitation, stated that appellant was a 49-year-old female postal carrier who
complained of left leg numbness and noted mild improvement of lower back pain. Examination
of the lumbar spine revealed normal lordosis and nontender bilateral midline and paraspinal to
palpation. Straight leg raise testing was negative. Examination of the bilateral lower extremities
did not reveal any deformity, edema or ecchymosis. Range of motion was 90 degrees flexion
and 15 degrees extension. Dr. Nguyen noted that a magnetic resonance imaging (MRI) scan of
the lumbar spine revealed minimal retrolisthesis of L3 on L4, disc desiccation at L2-3 with mild
narrowing of the intervertebral disc spaces and mild spondylitic changes. He diagnosed
multilevel broad-based disc bulges causing lateral region of narrowing which was most severe at
L4-5 on the left and degenerative disc disease at the L5-S1 level. Dr. Nguyen recommended
modified duty from October 11, 2011 to February 5, 2012.
In a November 8 and 21, 2011 progress notes, Dr. Elizabeth D.E. Kaiser, Board-certified
in occupational medicine, noted that appellant worked as a letter carrier since March 2007 and
complained of low back and knee pain. She was a part-time letter carrier who worked four to
five hours a day and her duties involved carrying 30 to 50 pounds of mail in satchels and
delivering mail on walking routes. Appellant stated that she recently transferred branches and
that her new walking route involved more deliveries per street and had more stairs. She
explained that she began to experience occasional low back pain in 2008 and that the pain
worsened about late August to early September 2011. Upon examination, Dr. Kaiser observed
tenderness in the low back but no redness, swelling, warmth or bruising. She also noted
tenderness in the right lateral and left medial knees but no joint line tenderness or instability.
Dr. Kaiser diagnosed degenerative disc disease of the lower back, chronic low back pain and
bilateral knee sprain. She recommended that appellant remain on modified duty.

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In December 7 and 21, 2011 progress reports, Dr. Kaiser noted that appellant did not
complain of a discrete injury. She related that appellant was transferred to another postal service
in March 2011 and now made more deliveries per street, with more walking and more stairs.
Appellant stated that her low back and knee pain felt the same and that the knee pain worsened
with prolonged standing. She explained that her low back felt better after physical therapy but
worsened after she cleaned her home cabinet for one hour. Examination of the back revealed
mild tenderness midline low back and pain on extension, flexion and lateral bending to the left.
Examination of the knees revealed bi-medial tenderness, no instability and full range of motion
without pain. Dr. Kaiser diagnosed degenerative disc disease of the low back and bilateral knee
strain. She recommended appellant remain on modified duty.
In status reports dated November 8 to December 21, 2011, Dr. Kaiser diagnosed
degenerative disc disease of the lower back and knee strain and put her on modified duty until
January 11, 2012.
In a decision dated January 17, 2012, OWCP denied appellant’s occupational disease
claim finding insufficient medical evidence to establish that she sustained degenerative disc
disease and bilateral knee sprains as a result of her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 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.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7 The mere fact that work activities may produce symptoms
3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

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

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revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.8
ANALYSIS
Appellant alleged that her back and knee conditions resulted from her duties as a letter
carrier. OWCP accepted that her duties included walking and carrying a heavy satchel of mail.
It denied appellant’s claim finding insufficient medical evidence to establish that her conditions
resulted from her employment duties.
Appellant submitted medical reports by Dr. Kaiser, who related appellant’s complaints of
low back pain since 2008 and bilateral knee pain that worsened with prolonged standing. She
noted that appellant worked as a letter carrier since March 2007 and that her duties involved
carrying 30 to 50 pounds of mail in satchels and delivering mail on walking routes. Dr. Kaiser
reported appellant’s examination findings and diagnosed degenerative disc disease of the lower
back, chronic low back pain and bilateral knee sprains. She recommended that appellant remain
on modified duty. The Board notes that,0 although Dr. Kaiser mentioned appellant’s duties as a
letter carrier, she did not offer any opinion as to whether appellant’s lower back and bilateral
knee conditions were causally related to her federal employment duties. 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.9
Likewise, Drs. Nguyen and Hickox also failed to provide any opinion on the cause of
appellant’s back and bilateral knee conditions. Because Drs. Kaiser, Nguyen, and Hickox failed
to explain how appellant’s lower back degenerative disc disease and bilateral knee sprains were
causally related to her employment duties, these reports are insufficient to establish her claim.
Without rationalized medical opinion evidence demonstrating that appellant sustained
degenerative disc disease and bilateral knee sprains as a result of her letter carrier duties, the
Board finds that OWCP properly denied her claim.
On appeal, appellant requested that the Board reconsider her claim based on the
additional information and findings of her doctors. The Board’s jurisdiction, however, is limited
to the evidence that was before OWCP at the time it issued its final decision. The Board may not
consider this evidence for the first time on appeal.10 The Board cannot consider the new medical
evidence on appeal. The Board has reviewed the medical evidence of record and found that it
fails to establish that appellant sustained degenerative disc disease and bilateral knee sprains as a
result of her employment duties. Causal relationship is a medical question that must be

8

Patricia J. Bolleter, 40 ECAB 373 (1988).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D.,
58 ECAB 149 (2006).
10

See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

4

established by reasoned medical opinion evidence.11 Because appellant has not provided such
rationalized medical opinion in this case, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
degenerative disc disease and bilateral knee sprains were causally related to factors of her
employment.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, LINN GROVE POST
OFFICE, Linn Grove, IA, Employer
__________________________________________

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

Docket No. 21-0464
Issued: November 19, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2021 appellant filed a timely appeal from a November 2, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated May 20, 2020, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 28, 2018 appellant, then a 64-year-old rural letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that he injured his left hip on August 27, 2018 when he fell on
an uneven surface while in the performance of duty. He stopped work on August 27, 2018.
A bone scan obtained on April 17, 2018 demonstrated mild heterogeneous activity
surrounding the femoral component of appellant’s left hip prosthesis, especially at the level of the
distal end of the femoral component, suggesting the possibility of a stress reaction; focal areas of
abnormal uptake within multiple right ribs, consistent with right rib fractures; increased uptake in
the mid-lumbar spine, which could be degenerative, postoperative, or post-traumatic; and scattered
degenerative changes.
An x-ray of appellant’s hips and pelvis obtained on August 27, 2018 demonstrated no
indication of acute fracture or acute bony pathology, postoperative changes from left total hip
replacement involving abnormal lucency at the bone-metal interface of the distal femoral stem
with some bony remodeling of the lateral cortex of the proximal femoral diaphysis and with
suspected underlying changes of loosening of the femoral component.
In a hospital emergency department note dated August 27, 2018, Dr. Darrel Forslund, a
Board-certified family practitioner, indicated that he had examined appellant for complaints
following a fall. Appellant had related a history of injury that he was at work as a rural mail carrier,
stopped at a gas station, and tripped on cement, hitting his head, right hand, and right knee.
Dr. Forslund noted a medical history of left and right hip replacement, use of a special shoe on the
left foot to correct for height difference versus the right leg, prior hip fracture and revision, low
back laminectomy. He diagnosed injury of the hip region.
In a report dated August 30, 2018, Dr. Jason Hough, an osteopath Board-certified in
orthopedic surgery, noted that he had examined appellant for complaints of hip pain and
discomfort. Appellant informed Dr. Hough that on August 27, 2018 he fell while at work. He
noted that his left hip had been bothering him for quite some time and that he had undergone a
revision surgery in 2006. Dr. Hough noted that appellant had subsequently fallen multiple times,
which appeared to have loosened the left hip femoral component. On examination of the left hip,
he observed flexion to approximately 110 degrees and extension to approximately 15 degrees, with
significant complaints of pain and discomfort on log roll testing. Dr. Hough diagnosed femoral
loosening of a left hip prosthetic and recommended left femoral component revision surgery. In a
duty status report (Form CA-17) dated August 30, 2018, he diagnosed femoral loosening of the
prosthetic left hip and recommended that appellant remain off work. A prescription note of the
same date recommended referral to a specialist and remaining off work until the refer ral
appointment.
In a report dated October 10, 2018, Dr. Corey Rothrock, a Board-certified orthopedic
surgeon, examined appellant for complaints of left thigh pain. He noted that appellant had a history
of total hip replacement performed in the late 1990s with revision of the replacement performed
in 2005. Appellant had increasing pain and difficulty, especially with weight bearing, and severe
pain in the anterior thigh. On physical examination of the left lower extremity, Dr. Rothrock noted
a limp, tenderness, and difficulty with range of motion and activity. He diagnosed aseptic

2

loosening of the left femoral team. Dr. Rothrock recommended total hip arthroplasty revision. In
a Form CA-17 of the same date, he diagnosed loosening of the left hip prosthesis and
recommended work restrictions.
By decision dated December 3, 2018, OWCP denied appellant’s claim for compensation,
finding that appellant had not demonstrated that he was in the performance of duty at the time of
the accepted incident on August 27, 2018.
Postoperative x-rays of the pelvis, left hip, and left femur obtained on November 1, 2018
demonstrated status post left hip revision arthroplasty and a cortical fracture along the lateral aspect
of the left femoral diaphysis at the junction of the proximal and middle one thirds. A hospital note
dated November 3, 2018 indicated that appellant had been admitted to the hospital on November 1,
2018, underwent procedures of revision of the left total hip arthroplasty and extended trochanteric
osteotomy on that date, and was discharged on November 3, 2018.
In a follow-up note dated November 19, 2018, Dr. Rothrock examined appellant postrevision of the left total hip arthroplasty with trochanteric osteotomy. He noted that appellant’s
incision was healing nicely, passive range of motion of the hip was well-tolerated, and hip flexion
to 90 degrees.
In a return to work form dated January 4, 2019, Dr. Rothrock recommended that appellant
remain off work.
On January 25, 2019 appellant requested reconsideration.
In a return to work form dated May 8, 2019, Dr. Rothrock recommended that appellant
return to work without limitations the next day.
By decision dated June 28, 2019, OWCP modified its December 3, 2018 decision to accept
that appellant was in the performance of duty at the time of the accepted incident of
October 27, 2018. However, it continued to deny the claim for traumatic injury on that date,
finding that appellant had not submitted sufficient rationalized medical evidence to establish that
the accepted employment incident on October 27, 2018 caused or aggravated his diagnosed left
hip condition.
On October 22, 2019 appellant requested reconsideration. In an attached letter dated
October 13, 2019, he stated that he was enclosing a letter from Dr. Hough. OWCP did not receive
another letter from Dr. Hough with the request for reconsideration.
By decision dated November 20, 2019, OWCP denied appellant’s request for
reconsideration, finding that he had not submitted sufficient evidence to warrant review of the
June 28, 2019 merit decision.
On December 1, 2019 appellant again requested reconsideration. Enclosed with the
request was a July 11, 2019 letter from Dr. Hough. In the July 11, 2019 letter, Dr. Hough noted
that appellant had undergone a revision of hip replacement secondary to multiple falls and that he
apparently had falls as a mail carrier. He further noted that he saw appellant on April 10, 2018
and ordered a bone scan on April 17, 2018. Dr. Hough reported that appellant had no significant
3

abnormal blood flow or soft tissue activity on either side of the pelvis or hip, but that he did have
mild heterogeneous activity at the distal tip of the left hip. He recalled that he discussed with
appellant at that time that it “did appear that he did not have any prosthetic loosening.”
Subsequently, appellant had a fall on August 27, 2018, with subsequent subsidence of the left
femoral component with significant loosening. Dr. Hough opined that appellant’s current problem
in 2018 was related to his previous work-related injury, as “these were due to the loosening of the
prosthesis.”
By decision dated February 4, 2020, OWCP denied modification of its June 28, 2019
decision. It found that Dr. Hough’s July 11, 2019 letter did not provide a definitive diagnosis and
contained speculative statements, and that as such, it did not establish a causal relationship between
the accepted August 27, 2018 employment incident and a diagnosed medical condition.
On May 6, 2020 appellant requested reconsideration. With the request, he submitted an
April 23, 2020 letter from Dr. Hough. Dr. Hough stated that appellant underwent a revision of hip
replacement secondary to a fall at work on August 28, 2018. He opined that he believed with a
high degree of medical probability that this fall was a contributing factor to appellant’s subsequent
surgery. He noted that appellant underwent a bone scan on April 17, 2018 that demonstrated some
heterogeneous activity at the distal tip of the left hip and that he discussed with appellant at that
time that “it appear[ed] he did not have any prosthetic loosening.” Subsequent to the fall on
August 27, 2018, appellant had subsidence of the left femoral component with sign ificant
loosening.
By decision dated May 20, 2020, OWCP denied modification of its February 4, 2020
decision. It found that Dr. Hough’s April 23, 2020 letter essentially reiterated the information
contained in his July 11, 2019 letter and did not establish a causal relationship between the
accepted August 27, 2018 employment incident and a diagnosed medical condition, in part because
it did not differentiate between any preexisting conditions and appellant’s present medical
condition and did not discuss appellant’s history of multiple falls.
On July 13, 2020 appellant requested reconsideration. With his request, he attached a
statement explaining that at the beginning of 2018 he fell twice and that his first fall occurred at
work. Appellant noted an attached letter dated September 11, 2018 under OWCP File No.
xxxxxx282 concerning a fall that he had on April 2, 2018 and stated that this fall was the reason
he underwent the previously-referenced bone scan in this case. He noted that the diagnosed
condition under File No. xxxxxx282 was multiple fractures of the ribs on the right side, initial
encounter for closed fracture and that he fell while tripping on buckled cement onto his right side.
After recovering from the injury on April 2, 2018, appellant performed his work duties as
scheduled until his fall on August 27, 2018. He stated that he did not have any difficulties with
his hip from the time of his bone scan on April 17, 2018 to the incident of August 27, 2018.
By decision dated November 2, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s July 13, 2020 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds
that it did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of his claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted a statement dated July 13,
2020 explaining his history of two separate falls in 2018. The underlying issue in this case is
medical in nature, as OWCP found that appellant had not submitted sufficient rationalized medical
evidence to support that the incident of August 27, 2018 caused or aggravated his diagnosed
2

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
3

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
5

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

conditions. As such, the underlying issue in this case can only be addressed by submission of
medical evidence from a qualified physician. While appellant’s statement dated July 13, 2020 is
new, it is not medical evidence from a qualified physician.7 Therefore, he is also not entitled to
further review of the merits of his claim based on the third above -noted requirement under 20
C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2021
Washington, DC

Janice B. Askin, 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

See J.B., Docket No. 18-1531 (issued April 11, 2019); D.K., 59 ECAB 141 (2007).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
C.R., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Detroit, MI, Employer
)
___________________________________________ )
Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 09-225
Issued: August 17, 2009

Case Submitted on the Record

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

JURISDICTION
On October 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 15, 2008 that denied her claim for
compensation. Pursuant to 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 has met her burden of proof in establishing that she
sustained a left knee condition in the performance of duty.
FACTUAL HISTORY
On July 7, 2007 appellant, then a 51-year-old retired letter carrier, filed an occupational
disease claim alleging that she sustained a left knee condition at work. She alleged that she
aggravated an accepted left knee condition due to walking and stair climbing while working.
Appellant indicated that she first became aware of the injury and its relation to her work on
February 24, 2003. She also alleged that her knee gradually worsened from 2003 to 2006.

Appellant stated that she last carried mail on June 23, 2006. She indicated that her left hip was
replaced on November 24, 2006 and that her left knee was now in need of surgery. Appellant
retired on disability effective January 22, 2007.1
In a May 15, 2007 statement, appellant indicated that her injury began on February 24,
2003, when she tore a meniscus tear in her left knee when she slipped and fell down icy stairs in
the performance of duty. She alleged that her left knee was “still a source of significant pain and
disability” and would “require surgery.” Appellant also alleged that her left hip began to have
problems and was replaced on November 24, 2006.
Appellant submitted medical evidence with her claim. In a March 21, 2006 treatment
note, Dr. Raimonds Zvirbulis, a Board-certified orthopedic surgeon, noted that she had a long
history of left leg pain and arthritic knee pain over the previous six years. He advised that
appellant’s history of injury included a “slip downstairs a year ago, another injury about three
years ago.” Dr. Zvirbulis noted findings of minimal effusion and mild medial joint-line
tenderness in the left knee. He found essentially no internal or external rotation of the left hip.
X-rays revealed severe bone-on-bone arthritic changes. Dr. Zvirbulis opined that “the majority
of [appellant’s] leg symptoms are due to the severe osteoarthritis of the left hip.” He
recommended permanent restrictions on unnecessary climbing, walking or standing and advised
that appellant was a candidate for a total hip replacement. In a July 26, 2006 report,
Dr. Amitha V. Kopparam, a Board-certified internist, diagnosed left hip osteoarthritis, double
vision, back pain from sciatica and left knee pain and opined that appellant was unable to
perform her duties as a letter carrier. She opined that appellant was totally disabled from
March 8 to 12, 2006, due to the pain.
Appellant also submitted reports from Dr. Veena Cham, a Board-certified internist. In an
April 26, 2006 treatment note, Dr. Cham noted that appellant was seen for low back pain, left hip
pain, and left knee pain. She recommended strengthening, and stretching exercises for the left
hip and lumbar stabilization exercises. On June 6, 2006 Dr. Cham related that appellant had hip
and back pain. She noted that a “couple of years ago, [appellant] had a fall, she has back pain
since then.” Dr. Cham advised that diagnostic testing revealed severe arthritis and opined that
appellant could not work with severe arthritis. On May 30, 2007 she stated that appellant had a
history of a left knee injury from a fall on February 24, 2004. Dr. Cham noted that appellant had
a fall in October 2005 at which time the left knee began to hurt again. She advised that appellant
had pain in the left hip. Dr. Cham noted that appellant’s duties as a letter carrier included lots of
walking and going up and down stairs. She indicated that appellant was unable to work or walk
and advised that she initially used a cane due to arthritis of the knee. Dr. Cham advised that the
injury was aggravated by the fall, which resulted in the eventual need for surgery to the left knee.

1

The record reflects that appellant filed six claims from 2001 through 2006. Claim numbers xxxxxx866 and
xxxxxx226, were no time loss cases. Claim numbers xxxxxx382 and xxxxxx846 were duplicate cases with a date of
injury of February 24, 2003 that were denied. The Office accepted a left knee strain under claim number
xxxxxx555. It also accepted left knee contusion, left shoulder sprain and left neck sprain under claim number
xxxxxx448. Appellant also had a nonwork-related injury on January 21, 2006, in which she seriously injured her
left hip and had complications requiring surgery on November 24, 2006. These other claims are not presently before
the Board.

2

In a letter dated July 13, 2007, the employing establishment controverted the claim.
Andrea Porter, a health and human resource management specialist, indicated that appellant had
an identical claim under File No. xxxxxx382, which was denied on December 13, 2005.
In a letter dated July 25, 2007, the Office requested additional factual and medical
evidence from appellant. In an August 1, 2007 response, appellant alleged that she was claiming
an aggravation of her February 24, 2003 injury. She alleged that, by June 2006, she was in “too
much discomfort to perform city carrier delivery work and had alternate sitting/standing duties.
The [employing establishment] told me to stay home after that.” Appellant stated that she retired
on disability on January 22, 2007 due to the knee and hip problems. She indicated that she
wished to claim wage loss since June 3, 2006 and that she wanted the Office to cover her future
knee surgery.
In an October 11, 2007 report, Dr. Cham indicated that appellant had arthritis. She also
noted appellant’s history of injury and treatment, which included severe osteoarthritis of the left
hip for which left hip replacement surgery was performed on November 24, 2006. Dr. Cham
indicated that appellant was presently having pain in the left knee. She advised that appellant
associated “this to the wear and tear from walking and stair climbing while bearing the weight of
the mail satchel that she experienced while delivering mail in the years prior to her retirement.”
Dr. Cham diagnosed osteoarthritis of the left knee joint and opined that appellant’s current
activity levels were “contributing further aggravation to this joint, even though she has been
retired since January 22, 2007.”
By decision dated October 19, 2007, the Office denied appellant’s claim finding that she
failed to submit the necessary medical evidence in support of her claim.
Appellant requested a telephone hearing, which was held on February 12, 2008. In a
letter dated March 6, 2008, her representative indicated that he was providing additional medical
evidence from Dr. Cham. However, the additional report was not received by the Office.
By decision dated June 3, 2008, the Office hearing representative affirmed the Office’s
October 19, 2007 decision.
In a letter dated July 11, 2008, appellant’s representative requested reconsideration and
submitted additional evidence. In a March 6, 2008 report, Dr. Cham noted that appellant injured
her left knee on July 28, 2001, while delivering the mail. She explained that appellant had an
undersurface tear of the posterior horn of the lateral meniscus and a subchondrial cyst involving
the lateral tibial plateau posteriorly, which improved with physical therapy. Dr. Cham also noted
that appellant had a subsequent injury to the left knee while at work on February 24, 2003 when
she slipped while going down stairs while delivering mail. She noted that appellant improved
but that she had pain in the left knee and left hip. Dr. Cham advised that, at that time, appellant
was diagnosed with severe osteoarthritis of the left hip and a tear of the posterior horn of the
lateral meniscus. She noted appellant’s November 24, 2006 left hip replacement surgery and
advised that she was “again having throbbing pain and swelling of the left knee.” Dr. Cham
related that she associated this with “wear and tear from walking and stair climbing while
bearing the weight of the mail satchel that [appellant] experienced while delivering the mail in
the years prior to her retirement.” She diagnosed left knee osteoarthritis and tear of the posterior

3

horn of the lateral meniscus. Dr. Cham indicated that appellant’s “current activity levels [were]
contributing to further aggravation to this joint, even though [she] has been retired since
January 22, 2007.” She opined that she could “state with reasonable medical certainty that
[appellant’s] occupational activities, including the walking and stair climbing while carrying a
weighted mail satchel did contribute significantly to the worsening of the left knee condition of
tricompartmental arthritic changes and tear of the posterior horn of the lateral meniscus.”
By decision dated September 15, 2008, the Office denied modification of its prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

Id.

4

ANALYSIS
Appellant alleged that her left knee condition was caused by an aggravation of a left knee
torn meniscus as a result of having to walk and climb stairs since February 24, 2003. It is not
disputed that she walked and climbed stairs as part of her job. The Office denied the claim
finding that appellant had not submitted sufficient medical evidence to establish that her left knee
condition was caused or aggravated by walking and climbing steps at work or any other specific
factors of her federal employment.
In support of her claim, appellant submitted several medical reports from Dr. Cham. In
reports dated April 26 and June 6, 2006, Dr. Cham did not specifically address whether her
employment caused or aggravated a diagnosed condition. 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.6 In a May 30, 2007 report, Dr. Cham noted appellant’s history
including a left knee injury from a fall on February 24, 2004 and a fall in October 2005. She also
advised that appellant had left hip pain and arthritis in her knee. Dr. Cham indicated that
appellant’s letter carrier duties included lots of walking and going up and down stairs. She
advised that the arthritis was aggravated by the fall, which resulted in the eventual need for
surgery to the left knee. However, Dr. Cham did not explain how she arrived at her opinion on
causal relationship. The Board notes that an aggravation of an underlying condition by
employment factors must be established by probative medical opinion evidence.7 Additionally,
it appears that Dr. Cham is relating appellant’s condition to a traumatic event instead of to an
occupational disease as claimed by appellant.8
On October 11, 2007 Dr. Cham indicated that appellant’s left knee pain from arthritis was
due to the “wear and tear from walking and stair climbing while bearing the weight of the mail
satchel that [appellant] experienced while delivering mail in the years prior to her retirement.”
She opined that appellant’s current activity levels were “contributing further aggravation to this
joint, even though [she] has been retired since January 22, 2007.” The Board notes that
Dr. Cham’s opinion is of limited probative value as she did not provide medical rationale to
support her conclusion on causal relationship.
In a March 6, 2008 report, Dr. Cham indicated that appellant had a meniscal tear while
delivering the mail on July 28, 2001. She also noted that appellant sustained a left knee injury
while at work on February 24, 2003 when she slipped while going down stairs. To the extent
Dr. Cham is relating appellant’s condition to these episodes, these matters relate to traumatic
events and are not consistent with a claim for an occupational disease.9 She also diagnosed
osteoarthritis of the left knee noting that appellant had “throbbing pain and swelling of the left
6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

7

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

8

See 20 C.F.R. § 10.5(q), (ee) (a traumatic injury is a condition caused by a specific event or incident, or series of
incidents, within a single workday while an occupational disease is a condition produced by the work environment
over a period longer than a single workday or shift).
9

See id.

5

knee” and opined that her condition was due to the “wear and tear from walking and stair
climbing while bearing the weight of the mail satchel that she experienced while delivering the
mail in the years prior to her retirement.” Dr. Cham opined that appellant’s current activity
contributed to “further aggravation to this joint, even though she has been retired since
January 22, 2007.” She opined that “with reasonable medical certainty” that appellant’s work
activities, “including the walking and stair climbing while carrying a weighted mail satchel did
contribute significantly to the worsening of the left knee condition of tricompartmental arthritic
changes and tear of the posterior horn of the lateral meniscus.” However, Dr. Cham did not
support her opinion with a rationalized explanation. The Board finds her conclusion
unconvincing, despite her noting that appellant has been retired since January 2007, because she
does not explain the reasons for this conclusion. For example, Dr. Cham did not provide medical
rationale in this or other reports to explain why work duties that ended no later than
January 2007, caused an aggravation of left knee osteoarthritis and why such condition would
not be due to the nonwork-related left hip condition. As noted, part of appellant’s burden of
proof includes the submission of rationalized medical opinion evidence.
Other medical evidence submitted by appellant is also insufficient to establish her claim.
In a March 21, 2006 treatment note, Dr. Zvirbulis noted that appellant had six-year history of left
leg pain and arthritic knee pain, which included “slip downstairs a year ago, another injury about
three years ago.” He noted x-rays findings and opined that “the majority of [appellant’s] leg
symptoms are due to the severe osteoarthritis of the left hip.” The Board notes that this report
tends to support that appellant’s condition is due to her preexisting severe osteoarthritis of the
left hip. In a July 26, 2006 report, Dr. Kopparam noted diagnoses and appellant’s disability
status but he did not provide any opinion on causal relationship.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12
On appeal, appellant’s representative alleged that the reports of Dr. Cham were sufficient
to establish causal relationship. However, as noted above, Dr. Cham did not provide a
rationalized opinion explaining how appellant’s condition was related to factors of her
employment.
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s left knee condition was caused and/or aggravated by factors of her employment, she
has not met her burden of proof in establishing that she sustained a medical condition in the
performance of duty causally related to factors of employment.

10

See supra note 6.

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

6

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a left knee condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and June 3, 2008 are affirmed.
Issued: August 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 07-704
Issued: July 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2007 appellant filed a timely appeal of an October 20, 2006 decision of
the Office of Workers’ Compensation Programs, denying merit review of her claim. Since more
than one year has elapsed between the last merit decision on September 27, 2005 and the filing
of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to
20 C.F.R. §§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly refused to reopen the case for merit review
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant filed an occupational disease claim (Form CA-2) on January 20, 2003 alleging
that she sustained a back injury causally related to her federal employment as a city carrier. A
February 11, 2003 memorandum indicated that appellant was currently on the periodic rolls with
respect to an April 2002 employment-related back injury. By decision dated September 15,

2004, an Office hearing representative found that the evidence was sufficient to accept an
aggravation of degenerative disc disease. The Office was directed to determine the period of
disability.
By decision dated February 3, 2005, the Office determined that appellant was not entitled
to continuing compensation for wage loss. The Office determined that the accepted condition
had resolved as of May 14, 2003, the date of a report by Dr. Thomas DiBenedetto, an orthopedic
surgeon.1
Appellant requested a review of the written record. By decision dated September 27,
2005, an Office hearing representative affirmed the February 3, 2005 decision.
In a letter dated September 20, 2006, appellant requested reconsideration of her claim.
She argued that the Office had improperly used medical evidence by using the same evidence to
reopen and rescind the claim. Appellant submitted medical reports dated August 13, 2003 and
June 9, 2005 from Dr. Kenneth Zahl, an anesthesiologist. She also submitted a November 22,
2002 report from Dr. Michael Busch, an orthopedic surgeon. These reports had previously been
submitted prior to the September 27, 2005 merit decision.
By decision dated October 20, 2006, the Office determined that the application for
reconsideration and accompanying evidence were insufficient to warrant reopening the claim for
merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulation provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that set forth arguments and contains evidence that either “(1) shows that [the Office]
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by [the Office]; or (3) constitutes relevant and pertinent evidence not
previously considered by [the Office].”3 Section 10.608(b) states that any application for review
that does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied
by the Office without review of the merits of the claim.4

1

Appellant was referred to Dr. DiBenedetto pursuant to development of the April 2002 claim. The Office noted
that appellant had received compensation through December 27, 2003 pursuant to the April 2002 injury claim.
2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
3

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

2

ANALYSIS
Appellant submitted a written application for reconsideration dated September 20, 2006.
She stated that she was raising a legal argument that the Office had improperly used medical
evidence as they used the same evidence for reopening and rescinding the claim. The Board
notes that the Office did not rescind acceptance of the claim. The Office determined that
appellant was not entitled to any additional compensation for wage loss with respect to this
claim. Appellant did not discuss the evidence, refer to supporting legal authority or otherwise
provide a new and relevant legal argument. Where the legal argument presented has no
reasonable color of validity, the Office is not required to reopen the case for merit review.5 The
Board finds that appellant did not advance a relevant legal argument not previously considered,
or show that the Office erroneously applied or interpreted a point of law.
With respect to the medical evidence submitted, the reports from Drs. Zahl and Busch
were previously of record and considered prior to the last merit decision. Appellant did not
submit relevant and pertinent evidence not previously considered by the Office. Accordingly,
the Board finds that she did not meet any of the requirements of section 10.606(b)(2). Since
appellant did not meet the requirements of section 10.606(b)(2), she is not entitled to a merit
review of her claim.
CONCLUSION
The Office properly refused to reopen the claim for merit review under 5 U.S.C.
§ 8128(a).

5

See Norman W. Hanson, 40 ECAB 1160 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2006 is affirmed.
Issued: July 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 15-1627
Issued: April 26, 2016

Case Submitted on the Record

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

JURISDICTION
On July 27, 2015 appellant filed a timely appeal from a February 19, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral foot and
ankle conditions due to factors of her federal employment on or before October 6, 2013.
FACTUAL HISTORY
On November 25, 2013 appellant, then a 61-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging bilateral ankle and foot conditions in the
performance of duty. She attributed her conditions to walking on uneven ground while
1

5 U.S.C. § 8101 et seq.

delivering packages, walking across the workroom floor, entering and exiting her delivery
vehicle, and the effects of a January 16, 2004 traumatic foot injury under File No. xxxxxx520.
Appellant stopped work on November 22, 2013.
Appellant was seen by Dr. Richard Hines, an attending Board-certified family
practitioner. On November 22, 2013 Dr. Hines diagnosed right foot pain “possibly related to
work.” He prescribed an immobilizer boot and physical therapy. In a December 12, 2013 report,
Dr. Hines diagnosed right plantar fasciitis with no history of preexisting injury or impairment.
He checked a box marked “no” indicating that appellant had “no apparent injury” related to her
employment. Dr. Hines limited appellant to sedentary duty.
In a February 10, 2014 letter, OWCP advised appellant of the additional evidence needed
to establish her claim, including a detailed description of the work factors alleged to have caused
or contributed to the claimed conditions, and a narrative report from her attending physician
explaining how and why those duties would cause plantar fasciitis or any other condition. It
afforded appellant 30 days to submit such evidence.
In response, appellant submitted her February 20, 2014 statement, attributing the claimed
foot and ankle conditions to walking on uneven ground, entering and exiting her delivery vehicle
10 to 15 times a day, engine vibrations, and “bouncing around” in her delivery vehicle. She
explained that she experienced increased symptoms while at work. Appellant participated in
physical therapy while off work from November 22, 2013 to January 26, 2014, which reduced
her symptoms.
Her lower extremity lameness returned after she resumed work on
January 27, 2014.
Appellant’s supervisor provided a February 19, 2014 statement acknowledging that he
did “see how getting in and out of a postal vehicle would cause injury to her good ankle,” and
that appellant did walk on uneven ground in the performance of duty. The supervisor contended,
however, that appellant did not file an accident report or “pinpoint when this happened.”
By decision dated March 11, 2014, OWCP denied the claim, finding that causal
relationship had not been established. It accepted that the identified work factors occurred as
alleged. However, the medical evidence did not explain how and why those factors would cause
a foot or ankle condition.
On April 2, 2014 appellant requested a review of the written record by an OWCP hearing
representative. She submitted additional medical evidence in support of her claim.
In a November 22, 2013 report, Dr. Hines related appellant’s account of the onset of right
foot pain two weeks before with no apparent injury. November 22, 2013 x-rays of the right
ankle showed mild osteoarthritis, arthritic changes in multiple joints in the midfoot and hind foot
since a June 11, 2010 study, and a small inferior calcaneal spur unchanged since the June 11,
2010 study. Dr. Hines diagnosed right foot and ankle pain with a markedly antalgic gait. He
pared a medial foot callous and prescribed a walking boot. Dr. Hines diagnosed right plantar
fasciitis on December 12, 2013. Appellant’s symptoms persisted through December 2013.
Dr. Hines released appellant to part-time work on January 9, 2014.

2

Dr. Gregory Pomeroy, an attending Board-certified orthopedic surgeon, provided a
January 23, 2014 report noting a midfoot loss of medial longitudinal arch when standing, full
range of motion of the right foot and ankle, and a normal gait. He diagnosed right plantar
fasciitis and an acquired equinus deformity of the right foot. Dr. Pomeroy released appellant to
full duty as of January 27, 2014.
In a January 26, 2014 report,2 Dr. Hines explained that appellant’s right foot and ankle
pain were caused by plantar fasciitis, with osteoarthritis as a secondary cause. He opined that the
medical evidence substantiated that appellant’s duties aggravated her conditions but did not
cause them.
By decision dated November 4, 2014, an OWCP hearing representative set aside the
March 11, 2014 decision and remanded the case to refer appellant, the medical record, and a
statement of accepted facts (SOAF) to a second opinion physician. The SOAF noted that
appellant’s duties required prolonged walking over uneven ground and lifting and carrying up to
70 pounds. OWCP requested that the specialist provide a detailed, well-reasoned opinion
regarding whether the accepted factors caused or aggravated the claimed conditions.
On January 21, 2015 OWCP obtained a second opinion from Dr. Philip R. Kimball, a
Board-certified orthopedic surgeon. Dr. Kimball reviewed the medical record and statement of
accepted facts. He noted a history of a 2004 occupational left ankle sprain and left knee
dislocation. Appellant asserted that she had not “walked right” since that injury. Dr. Kimball
also summarized appellant’s treatment from November 2013 to January 2014, and noted the
recent onset of bilateral lower extremity edema. On examination he observed bilateral pes
planus, a right forefoot varus deformity, bunion formation, and a hammer toe of the right second
toe. Dr. Kimball diagnosed advanced degenerative arthritis of the midfoot bilaterally, resolved
right foot and ankle pain, bilateral flat foot deformity, a right forefoot varus deformity, and
bilateral varus deformity of the knees. He opined that appellant did not have plantar fasciitis.
Dr. Kimball opined that, based on the medical record and objective clinical findings, appellant’s
duties as a letter carrier did not cause or aggravate any of the diagnosed conditions.
By decision dated February 19, 2015, OWCP denied appellant’s claim finding that causal
relationship was not established based on Dr. Kimball’s opinion as the weight of the medical
evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to

2

Dr. Hines provided a copy of the report to OWCP on April 2, 2014.

3

the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.5 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial 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
ANALYSIS
Appellant claimed that she sustained bilateral foot and ankle conditions due to prolonged
walking and use of a delivery vehicle. In support of her claim, appellant submitted reports from
Dr. Hines, an attending Board-certified family practitioner. Dr. Hines diagnosed right plantar
fasciitis and degenerative arthritis of the right midfoot. He opined that, although there was no
distinct traumatic incident, objective findings supported that the accepted work factors, including
prolonged walking over uneven ground, aggravated the diagnosed conditions. Dr. Pomeroy, an
attending Board-certified orthopedic surgeon, confirmed the presence of plantar fasciitis, pes
planus, and an acquired equinus deformity.
OWCP obtained a second opinion from Dr. Kimball, a Board-certified orthopedic
surgeon, who observed pes planus, degenerative arthritis, and an equinus deformity of the right
foot. Dr. Kimball opined, however, that appellant did not have plantar fasciitis. He further
opined that her work duties did not cause or aggravate her conditions. Dr. Kimball indicated that
there were no objective findings to support that appellant’s work duties caused or aggravated the

3

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

4

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

5

20 C.F.R. § 10.5(q).

6

Solomon Polen, 51 ECAB 341 (2000).

4

diagnosed conditions. OWCP denied the claim by decision dated February 19, 2015, according
Dr. Kimball the weight of the medical evidence.
The Board finds that Dr. Kimball provided extensive rationale, fortified by objective
findings, explaining that work factors did not cause or aggravate the diagnosed bilateral ankle
and foot problems. Also, his opinion was based on the complete medical record and a SOAF.
As such, his opinion constitutes the weight of the medical evidence.
In contrast, the opinions of Dr. Hines and Dr. Pomeroy are insufficient to meet
appellant’s burden of proof, as neither physician provided medical rationale supporting causal
relationship. Neither physician explained the pathophysiologic effects of appellant’s work
activities on her feet or ankles. In the absence of such rationale, their opinions are insufficient to
meet appellant’s burden of proof.7
Appellant has not presented any rationalized medical evidence, based on a complete
medical record, establishing a causal relationship between her bilateral foot conditions and
factors of her federal employment. Thus, she has not met her burden of proof. On appeal
appellant asserts that Dr. Kimball’s opinion could not represent the weight of the medical
evidence as he did not examine her until she had returned to work for one year. She contends
that work factors caused her bilateral foot conditions. As found, however, appellant’s physicians
did not explain how or why work factors would cause or aggravate the claimed conditions.
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 bilateral foot
and ankle conditions due to factors of her federal employment on or before October 6, 2013.

7

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

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2015 is affirmed.
Issued: April 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 10-434
Issued: August 20, 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 December 7, 2009 appellant filed a timely appeal from a November 3, 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 appellant established that she sustained a right elbow condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On February 25, 2009 appellant, a 51-year-old city carrier, filed a traumatic injury claim
(Form CA-2) for right shoulder tendinitis. She attributed this condition to repetitive

casing/lifting. Appellant first became aware of her condition and that it was caused by her
employment on February 19, 2009.1
In a February 23, 2009 note, appellant described her work environment. She stated that
on November 22, 2008 a route adjustment was implemented and that since that time the mail
volume on her route was phenomenal. Appellant described working between 8½ to 12-hour
days, five days a week. She alleged that the heavy lifting and long hours caused her right elbow
tendinitis. Appellant also noted that she had a history of carpal tunnel syndrome in her right
hand. She stated that initially she had believed that the pain in her right elbow and hand was
related to the carpel tunnel condition, but that her physician had informed her that the carpal
tunnel had nothing to do with her elbow tendinitis.
By letter dated March 6, 2009, the employing establishment controverted appellant’s
claim, arguing that the evidence of record did not demonstrate that her alleged condition arose in
the performance of duty.
Appellant submitted a February 19, 2009 report, signed by Dr. John W. Sapp, a plastic
surgeon, who noted that she had a history of carpal tunnel and an onset of right elbow pain two
weeks prior. Dr. Sapp diagnosed carpal tunnel syndrome in appellant’s right wrist and right
elbow pain. He noted “context: there was no injury.” Dr. Sapp did note that appellant’s right
elbow pain was aggravated by excessive lifting and gripping.
In a subsequent report dated March 5, 2009, Dr. Sapp diagnosed right lateral
epicondylitis and carpal tunnel syndrome, conditions that he treated with steroid injections. On
April 1, 2009 he noted that appellant’s right elbow symptoms had improved. Dr. Sapp diagnosed
right lateral epicondylitis and carpal tunnel syndrome, conditions for which she was
“asymptomatic.”
On April 14, 2009 appellant submitted results from diagnostic tests and a February 25,
2009 report, in which Dr. Joseph Brogdon, a neurologist, reported that an electromyogram
(EMG) revealed no abnormality of either of appellant’s upper extremities.
By decision dated May 6, 2009, the Office denied the claim because the evidence of
record did not demonstrate that appellant’s alleged right elbow condition was causally related to
the established employment factors. It also noted that she had an accepted traumatic injury claim
for carpal tunnel.
On May 26, 2009 appellant, through her attorney, requested an oral hearing.
At a hearing conducted on August 10, 2009, appellant and her attorney were present and
she offered testimony concerning her history of injury, course of treatment, employment duties
and how they caused her condition.

1

Appellant has another claim, file number xxxxxx218, date of injury February 17, 2009, that was accepted for
temporary aggravation of right carpal tunnel syndrome.

2

By decision dated November 3, 2009, the Office affirmed its May 6, 2009 decision,
finding that the evidence of record did not demonstrate that appellant’s right elbow condition
was caused by the established employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the 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.8

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

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

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The Office accepted the employment factors appellant deemed responsible for her
condition. Appellant’s burden is to demonstrate that her condition was caused by these
established employment factors. Because causal relationship is a medical issue that can only be
proven by probative medical opinion evidence, appellant’s lay opinion is not relevant.9 The
medical evidence of record lacks the requisite reasoning to establish causal relationship and,
consequently, the Board finds that appellant has not established that she sustained an injury in
the performance of duty, causally related to her employment.
The Board notes initially that the report by Dr. Brogdon, which interpreted appellant’s
EMG findings, had little probative value on the issue of causal relationship. Dr. Brogdon’s
report in fact reported that her EMG studies were normal and he offered no diagnosis or opinion
regarding causal relationship.
While Dr. Sapp did diagnose right lateral epicondylitis, his reports lack a rationalized
opinion, supported by sufficient medical rationale, explaining how established employment
factors caused the condition diagnosed.10 He, in a February 19, 2009 report, reported the
diagnosis and then stated, “context: there was no injury.” Dr. Sapp did report that appellant’s
pain increased with lifting and gripping, but he never explained how the diagnosed conditions
were caused or aggravated by appellant’s specific job duties. Thus, this evidence does not
establish the requisite causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.12 The fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and
identified employment factors.
Because appellant has not submitted medical opinion evidence containing a reasoned
discussion of causal relationship that explains how the established employment factors caused or
aggravated the diagnosed medical condition, the Board finds that she has not established the
essential element of causal relationship.
9

Gloria J. McPherson, 51 ECAB 441 (2000); Sheila Arbour (Victor E. Arbour), 43 ECAB 779 (1992).

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

13

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

14

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

4

CONCLUSION
The Board finds that appellant has not established that she sustained a right elbow injury
in the performance of duty causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 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

5