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

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

Docket No. 17-0135
Issued: June 5, 2017

Case Submitted on the Record

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

JURISDICTION
On October 27, 2016 appellant filed a timely appeal from an October 7, 2016 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 his burden of proof to establish a right shoulder
condition causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its October 7, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On January 19, 2016 appellant, then a 59-year-old tractor trailer operator, filed an
occupational disease claim (Form CA-2) alleging that he developed right shoulder tendinitis as a
result of his occupational employment duties. He reported that he mainly used his right arm to
perform his employment duties for 8 to 12 hours per day, 7 days per week. Appellant stopped
work on January 17, 2016 and returned to work on January 19, 2016. On the reverse side of the
form, the employing establishment controverted the claim.
In an accompanying narrative statement, appellant described his repetitive employment
duties which required the use of his arms and shoulders to drive his tractor trailer, hook lines,
release doors, raise trailers, and load mail. He reported that he had severe pain in his right
shoulder and arm and was diagnosed with calcific tendinitis and shoulder sprain. Appellant
reported that the tendinitis was not a sudden injury and had been occurring for a while.
In a January 17, 2016 report, Dr. Olusola A. Akindele, Board-certified in occupational
medicine, reported that appellant was a right-handed male who complained of right shoulder pain
which had progressively worsened over time, resulting in his inability to raise his right arm. He
noted that appellant’s symptoms worsened after an increased workload due to the Christmas
holiday season. Dr. Akindele ordered an x-ray of appellant’s right shoulder. He diagnosed
calcific tendinitis of the right shoulder and right shoulder sprain and provided appellant modified
work duties.
In work activity status reports dated January 17 through February 16, 2016, Dr. Akindele
related appellant’s work restrictions.
On January 19, 2016 appellant accepted an offer of modified assignment pursuant to his
physician’s restrictions.
By letter dated January 21, 2016, the employing establishment controverted the claim.
In a January 28, 2016 diagnostic report, Dr. Ubaid A. Akhtar, a Board-certified
radiologist, reported that a magnetic resonance imaging (MRI) scan of appellant’s right shoulder
revealed calcific tendinopathy and subacromial subdeltoid bursitis. He further noted a small
partial-thickness undersurface entheseal tear of the supraspinatus, no full-thickness rotator cuff
tear, and moderate hypertrophic degenerative arthrosis of the acromioclavicular joint.
In a February 9, 2016 medical report form, Dr. Robert L. Waltrip, a Board-certified
orthopedic surgeon, diagnosed right shoulder calcific bursitis and restricted appellant to lightduty work.
By letter dated February 29, 2016, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and he was afforded 30 days to submit the requested evidence. In another letter of that
same date, OWCP requested that the employing establishment provide further information
pertaining to appellant’s occupational disease claim.

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In a March 9, 2016 e-mail correspondence, the employing establishment reported that
appellant was back to work full duty effective March 8, 2016.
In a March 17, 2016 narrative statement, appellant reported that both his supervisor and
the building safety manager concurred that his injury was work related, explaining that they were
not contesting his claim.
In support of his claim, appellant submitted additional medical reports.
In a January 17, 2016 diagnostic report, Dr. Edmond V. Russ, a Board-certified
diagnostic radiologist, reported that an x-ray of appellant’s right shoulder revealed calcific
tendinosis and no acute bony abnormality.
In treatment notes dated January 18 through March 1, 2016, Dr. Akindele provided
findings on physical examination and review of diagnostic testing. He diagnosed sprain of right
shoulder and calcific tendinitis of the right shoulder. Dr. Akindele provided appellant with
continued work restrictions and referred him for an orthopedic evaluation.
In a February 9, 2016 medical report, Dr. Waltrip reported that appellant presented for
evaluation of his right shoulder with complaints of mild intermittent symptoms over the last six
to eight months which worsened around the Christmas holiday with his increasing work
activities. He noted that appellant worked as a spotter/driver for the employing establishment
which entailed moving trailers around the yard and a lot of heavy pushing and pulling at
approximately chest level. Appellant was evaluated on January 17, 2016 when his pain
worsened and he was placed on light duty. Dr. Waltrip provided findings on physical
examination and review of diagnostic testing. He diagnosed very prominent calcific bursitis of
appellant’s right shoulder. Dr. Waltrip performed a subacromial corticosteroid injection and
recommended physical therapy.
In a March 8, 2016 note, Dr. Waltrip released appellant to full-duty work.
By decision dated April 22, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to his
accepted federal employment duties.
On June 6, 2016 appellant requested reconsideration of OWCP’s decision. He
resubmitted his prior narrative statement describing his employment duties and reported that his
orthopedic surgeon would be submitting a statement addressing causal relationship.
In an accompanying narrative statement, appellant detailed his employment duties by
listing his daily repetitive activities which he reported performing approximately 50 times per
day. He noted that the majority of his work involved movement with his arms and shoulders
which had been bothering him on and off for approximately one year. Appellant reported that he
typically worked a 40-hour week, but due to a shortage of manpower and increasing volume
during the holiday season, he was working up to 12 hours per day, sometimes 7 days per week,
causing his shoulder condition to worsen. He further stated that the pain and numbness he was
experiencing on his right side required surgery which was scheduled for July 22, 2016.

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In treatment reports dated March 8 and May 16, 2016, Dr. Waltrip provided findings on
physical examination and noted continued symptoms from calcific tendinitis/bursitis. He
reported that appellant could continue with full-duty work.
In a May 11, 2016 medical report, Dr. Waltrip reported that he first evaluated appellant
on February 9, 2016 for right shoulder pain. Appellant attributed his symptoms of increased pain
to moving trailers around the yard as well as heavy pushing and pulling at approximately chest
level. His radiographs showed very prominent calcific bursitis and he was noted to have
increased signal throughout the subacromial space on MRI scan. Dr. Waltrip reported that the
job duties appellant described may increase pain for a patient with such prominent calcific
bursitis on radiological studies. Accordingly, appellant’s job-related activities may have
aggravated his symptoms and contributed to the pain for which he sought treatment. Dr. Waltrip
reported that he did not believe that appellant sustained a specific isolated vocational injury to
cause his calcific bursitis, but opined that his job-related activities likely contributed to his pain
as a result of the inflammatory condition.
In progress notes dated June 13 through August 8, 2016, Natalie Llewellyn, a physician
assistant, documented treatment provided for appellant’s right shoulder injury. Ms. Llewellyn
reported that appellant elected to undergo surgery in the form of a right shoulder arthroscopy
with subacromial decompression, debridement calcific tendinitis, and possible rotator cuff repair.
In a June 22, 2016 medical report, Dr. Benedict C. Woo, Board-certified in physical
medicine and rehabilitation, reported that appellant presented for consultation regarding
numbness, tingling, and pain from chronic right shoulder pain which traveled to the neck at
times. He noted that appellant was scheduled for right shoulder surgery on July 22, 2016.
Dr. Woo diagnosed cervical strain, trapezius strain, and right arm numbness. He recommended
an electromyography test of the upper right extremity to evaluate for radiculopathy and
plexopathy prior to surgery.
In diagnostic reports dated July 11, 2016, preoperative testing revealed normal prior to
the scheduled July 22, 2016 surgery.
In a September 12, 2016 medical report, Dr. Waltrip reported that appellant was doing
well after his right shoulder arthroscopy and released him to light-duty work.
By decision dated October 7, 2016, OWCP affirmed the April 22, 2016 decision finding
that the evidence of record failed to establish that appellant’s diagnosed conditions were causally
related to his accepted federal 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, 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 or specific condition for which compensation is claimed is causally related to the

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employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such causal
relationship.7 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant engaged in repetitive upper extremity activities as a
tractor trailer operator. It denied his claim, however, finding the evidence of record failed to
establish a causal relationship between those activities and his right shoulder diagnosis. The
Board finds that the medical evidence of record is insufficient to establish that appellant
developed right shoulder calcific bursitis and a right shoulder sprain causally related to factors of
his federal employment as a tractor trailer operator.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

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In medical reports dated January 17 through March 1, 2016, Dr. Akindele provided
findings on physical examination and diagnosed sprain of the right shoulder and right shoulder
calcific tendinitis. He failed to describe appellant’s employment duties or provide any opinion
regarding the cause of his condition. The Board has found that a physician must provide a
narrative description of the identified employment factors and a reasoned opinion on whether the
employment factors described caused or contributed to the diagnosed medical condition.9 As
such, his reports are insufficient to meet appellant’s burden of proof.
In medical reports dated February 9 through September 12, 2012, Dr. Waltrip provided
findings on physical examination and review of diagnostic testing. He diagnosed right shoulder
calcific bursitis. The Board finds that the opinion of Dr. Waltrip is insufficiently rationalized to
establish appellant’s occupational disease claim.
In his May 11, 2016 report, Dr. Waltrip opined that appellant’s job-related activities may
have aggravated his symptoms and contributed to the pain for which he sought treatment. The
Board notes that Dr. Waltrip’s opinion on causation is highly speculative as he notes that
appellant’s employment duties “may have” aggravated his symptoms without a firm conclusion
that they did in fact cause or aggravate his injury.10 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. To be of probative value, a physician’s opinion on causal relationship
should be expressed in terms of reasonable medical certainty.11 Dr. Waltrip further reported that
he did not believe that appellant sustained a specific isolated vocational injury to cause his
calcific bursitis, but opined that his job-related activities likely contributed to his pain as a result
of the inflammatory condition. The Board notes that Dr. Waltrip associated appellant’s pain to
his employment duties rather than the diagnosed medical condition. The Board has consistently
held that pain is a symptom, rather than a compensable medical diagnosis.12 As Dr. Waltrip is
attributing appellant’s symptoms to his employment duties rather than the right shoulder calcific
bursitis, his opinion on causal relationship is of limited probative value.13
Dr. Waltrip did not identify the cause of appellant’s underlying condition. He reported
that appellant had prominent calcific bursitis on radiological studies. The Board notes that it is
unclear if appellant’s calcific bursitis was caused or aggravated by his occupational employment
duties, a result of a preexisting condition, or due to degenerative changes. A well-rationalized
opinion is particularly warranted when there is history of a preexisting condition.14
Dr. Waltrip did not provide a sufficiently rationalized medical opinion explaining the
mechanism of injury pertaining to this occupational disease claim. He did not explain how or
9

John W. Montoya, 54 ECAB 306 (2003).

10

See Michael R. Shaffer, 55 ECAB 339 (2004).

11

Rickey S. Storms, 52 ECAB 349 (2001); Beverly R. Jones, 55 ECAB 411 (2004).

12

C.F., Docket No. 08-1102 (issued October 10, 2008).

13

M.R., Docket No. 14-11 (issued August 27, 2014).

14

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

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why the repetitive pushing and pulling activities described by appellant would have caused or
aggravated his right shoulder calcific bursitis or shoulder sprain.15 As such, Dr. Waltrip’s report
lacks the specificity and detail needed to establish that appellant’s right shoulder conditions were
a result of a work-related occupational exposure.16
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Russ and Dr. Akhtar’s diagnostic reports only interpreted imaging studies and
provided no opinion on the cause of appellant’s injury.17 Without any mention of the repetitive
employment duties, any findings made could not be related to his claim to establish causal
relationship.18
While Dr. Woo’s June 22, 2016 medical report provided additional diagnoses of cervical
and trapezius strain, he failed to discuss appellant’s federal employment duties or give any
opinion on the cause of his diagnosed conditions. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s conditions is of limited
probative value.19
Ms. Llewellyn’s progress notes dated June 13 through August 8, 2016 are also
insufficient to establish appellant’s claim. Physician assistants are not considered physicians as
defined under FECA; therefore, their opinions are not medical evidence and are of no probative
value.20
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.21 Appellant’s honest belief that his occupational
employment duties caused his medical injury is not in question, but that belief, however
sincerely held, does not constitute the medical evidence necessary to establish causal
relationship.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a tractor trailer operator and his
diagnosed right shoulder calcific bursitis and sprain. Thus, appellant has failed to meet his
burden of proof.
15

S.W., Docket 08-2538 (issued May 21, 2009).

16

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

17

D.H., Docket No. 11-1739 (issued April 18, 2012).

18

S.Y., Docket No. 11-1816 (issued March 16, 2012).

19

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

20

5 U.S.C. § 8102(2) of FECA provides as follows: (2) “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. M.S., Docket No. 16-1497 (issued December 20, 2016); see Roy L. Humphrey, 57 ECAB
238 (2005). See also W.M., Docket No. 16-1658 (issued May 3, 2017); A.F., Docket No. 15-1555 (issued
December 16, 2015).
21

D.D., 57 ECAB 734 (2006).

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Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right shoulder
conditions causally related to factors of his federal employment as a tractor trailer operator.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 7, 2016 is affirmed.
Issued: June 5, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Omaha, NE, Employer
__________________________________________

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

Docket No. 07-1982
Issued: February 11, 2008

Case Submitted on the Record

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

JURISDICTION
On July 24, 2007 appellant filed a timely appeal from the December 7, 2006 and April 6,
2007 merit decisions of the Office of Workers’ Compensation Programs granting a schedule
award. 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 has more than an 11 percent permanent impairment of the
left lower extremity for which he received schedule awards.
FACTUAL HISTORY
This case is before the Board for the third time. In the first appeal, the Board affirmed a
December 3, 1998 decision finding that appellant had no disability after September 16, 1996 due

to his September 15, 1995 employment injury.1 In the second appeal, the Board affirmed a
May 11, 1999 decision finding that he failed to establish a recurrence of disability on
September 15, 1995.2 The findings of fact and conclusions of law from the prior decision are
hereby incorporated by reference.
In a decision dated April 15, 2005, the Office found that appellant failed to establish a
recurrence of disability due to his accepted employment injury. On October 5, 2005 an Office
hearing representative vacated the April 15, 2005 decision and remanded the case for a
determination of whether his ongoing left lower extremity condition was caused or aggravated
by the September 15, 1995 employment injury.
On December 8, 2005 the Office referred appellant to Dr. Niranjan R. Chandragiri, a
Board-certified neurologist, for a second opinion examination. In a report dated February 8,
2006, Dr. Chandragiri reviewed his history of injury and discussed his current complaints of
altered sensation, fatigue and problems with movement of the left leg below the knee. He noted
that appellant had a loss of one centimeter circumference of the midcalf and thigh on the left side
with “no focal wasting.” Dr. Chandragiri found inconsistent muscle weakness and intermittent
effort on neurological examination and a loss of sensation in the left lower extremity. He opined
that appellant’s “neurological examination today shows no deficit[;] sensory abnormalities
appear to be functional (psychological) in nature. There [is] no indication of saphenous nerve
injury[;] there [is] no evidence of peripheral neuropathy.”
On February 14, 2006 the Office referred appellant to Dr. Salaheddine Tomeh, a Boardcertified surgeon, for a second opinion examination. In a report dated March 16, 2006,
Dr. Tomeh diagnosed venous insufficiency and saphenous nerve neuropathy due to appellant’s
September 15, 1995 employment injury and a history of a pulmonary embolism due to the
venous insufficiency. On examination of the lower extremity, he found no evidence of chronic
vascular insufficiency, varicosities, skin alterations, swelling in the left ankle, edema,
pigmentation or ulceration. Dr. Tomeh measured equal ankle circumference and the right calf
circumference as 40.7 centimeters and the left calf circumference as 40.0 centimeters. He found
“definite tenderness along the medial aspect of the left calf” and left knee tenderness with no
mass, swelling, crepitation or instability. Dr. Tomeh indicated that appellant had equal muscle
strength when distracted and an inconsistent sensory examination.
On April 12, 2006 the Office accepted that appellant sustained a recurrence of disability
due to his September 15, 1995 employment injury. The Office accepted venous insufficiency
and a pulmonary embolism as a consequence of his September 15, 1995 employment injury.

1

Docket No. 99-1494 (issued December 11, 2000). The Office accepted that appellant sustained a left leg
contusion, pes anserine bursitis, a left knee medial meniscal tear, thrombophlebitis and a saphenous nerve injury due
to a September 15, 1995 work injury. On May 20, 1996 he underwent arthroscopic surgery of the left knee to repair
a chondral fracture. Appellant did not have a meniscal tear. The Office granted him a schedule award for a four
percent permanent impairment of the left lower extremity. The Office also accepted appellant’s claim for major
depressive disorder and anxiety disorder under file number 131016216 and paid him compensation beginning
September 1996.
2

Docket No. 99-2079 (issued December 13, 2001).

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On July 20, 2006 appellant requested a schedule award. On August 29, 2006 an Office
medical adviser noted that appellant previously received an award for a four percent impairment
of the left lower extremity due to an impairment of the saphenous nerve. He reviewed the
medical evidence, including the reports of Dr. Chandragiri and Dr. Tomeh, and found that
appellant had a Grade 2, or 80 percent, impairment of the saphenous nerve due to neuropathy
according to Table 16-10 on page 482 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th ed. 2001 (A.M.A., Guides). The Office medical
adviser noted that the maximum impairment of the saphenous, or femoral nerve, was seven
percent. He multiplied the graded 80 percent deficit by the maximum 7 percent impairment of
the femoral nerve to find a 5.6 percent lower extremity impairment, which he rounded to 6
percent.3 The Office medical adviser further found that appellant had a class 1, or 5 percent,
impairment of the lower extremity due to peripheral vascular nerve disease.4 The Office medical
adviser combined the 6 percent impairment of the saphenous nerve with the 5 percent
impairment for peripheral vascular disease to find an 11 percent left lower extremity impairment.
By decision dated December 7, 2006, the Office granted appellant a schedule award for
an additional seven percent impairment of the left lower extremity. The period of the award ran
for 20.16 weeks from March 16 to August 4, 2006.
On December 12, 2006 appellant requested a review of the written record. In a
December 25, 2006 letter to the hearing representative, he alleged that the Office had mishandled
his medical treatment. In a letter dated March 8, 2007, appellant argued that he had a 60 percent
lower extremity impairment due to vascular disease according to Chapter 4 of the A.M.A.,
Guides relevant to the cardiovascular system. He also contended that he had an additional
impairment for anticoagulant treatment
By decision dated April 6, 2007, an Office hearing representative affirmed the
December 7, 2006 schedule award determination.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 sets forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard

3

A.M.A., Guides 552, Table 17-37.

4

Id. at 554, Table 17-38.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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applicable to all claimants.7 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.8
ANALYSIS
The Office accepted a left leg contusion, pes anserine bursitis, a left knee medial
meniscal tear, thrombophlebitis and a saphenous nerve injury due to a September 15, 1995
employment injury. The Office also accepted that appellant sustained venous insufficiency and a
pulmonary embolism as a consequence of his work injury.
On July 20, 2006 appellant requested a schedule award. An Office medical adviser
reviewed the medical evidence on August 29, 2006 and applied the tables and pages of the
A.M.A., Guides to the physical findings of Dr. Chandragiri and Dr. Tomeh. He noted that
appellant had previously received an award for a four percent impairment of the left lower
extremity due to an impairment of the saphenous nerve and discussed his history of arthrosopic
surgery to repair a chondral fracture. The Office medical adviser found that the maximum
impairment of the saphenous, or femoral nerve, was seven percent for dysethesia.9 He graded
appellant’s impairment of the saphenous nerve to neuropathy as Grade 2, or 80 percent.10 The
Office medical adviser multiplied the 7 percent maximum impairment of the saphenous, or
femoral nerve, by the graded 80 percent impairment to find a 5.6 percent lower extremity
impairment, which he rounded to 6 percent. He then determined that appellant had a class 1, or 5
percent, impairment of the lower extremity due to peripheral vascular nerve disease.11 The
Office medical adviser combined the 6 percent impairment of the saphenous nerve with the 5
percent impairment for peripheral vascular disease to find a total left lower extremity impairment
of 11 percent. The Board finds that the opinion of the Office medical adviser is in accordance
with the A.M.A., Guides and constitutes the weight of the medical evidence. Appellant has not
submitted probative medical evidence showing more than an 11 percent impairment of the left
lower extremity.
On appeal appellant submitted a statement regarding the Office’s nurse intervention
program. The Board’s jurisdiction, however, is limited to the review of final Office decisions
under the Act.12
CONCLUSION
The Board finds that appellant has no more than an 11 percent left lower extremity
impairment for which he received schedule awards.
7

20 C.F.R. § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

A.M.A., Guides 552, Table 17-37.

10

Id. at 482, Table 16-10.

11

Id. at 554, Table 17-38.

12

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 6, 2007 and December 7, 2006 are affirmed.
Issued: February 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Robert A. Taylor, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-489
Issued: April 9, 2012

Case Submitted on the Record

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

JURISDICTION
On December 21, 2010 appellant, through her attorney, filed a timely appeal of a July 2,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she was
disabled beginning December 1, 2000 due to her accepted conditions of chondromalacia of the
right knee and tendinitis of the right shoulder.
On appeal, counsel argued that Dr. Gerard L. Murtagh, a Board-certified orthopedic
surgeon’s, December 19, 2009 report was sufficient to require additional development by
OWCP. He also protested OWCP’s statement that this report was not rationalized.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 22, 2003 appellant, then a 41-year-old city carrier, filed an occupational disease
claim alleging that she developed chondromalacia and synovitis of the right knee, lateral
epicondylitis of the right elbow and tendinitis of the right shoulder in the performance of duty.
She indicated that she first became aware of her condition on January 4, 2002 and first attributed
her conditions to her employment on that date. On the reverse of the form, appellant’s
supervisor indicated that appellant opted for disability retirement on November 30, 2000.2
In a report dated March 12, 2004, Dr. Murtagh diagnosed osteochondral defect and loss
of articular cartilage in the right knee with resulting arthroscopy on February 21, 2002. He
diagnosed rotator cuff tendinitis, bursitis, inflammation and impingement in the left shoulder.
Dr. Murtagh stated that appellant could not perform her duties as a letter carrier due to her right
knee condition. On March 18, 2004 he stated that it was possible that her job aggravated her
osteochondral lesion. Dr. Murtagh also stated, “The rotator cuff tendinitis very well could have
had its etiology and irritation and inflammation progression due to her job duties as a mail
carrier.”
By decision dated June 2, 2004, OWCP accepted appellant’s claim for aggravation
chondromalacia and right shoulder tendinitis.
On June 12, 2004 appellant filed a claim for compensation from December 1, 2000.3 By
decision dated September 29, 2004, OWCP denied her claim for compensation.
In a letter dated May 21, 2007, OWCP noted that appellant requested disability
compensation beginning January 4, 2002. It stated that she voluntarily retired and took disability
retirement effective December 1, 2000. OWCP informed appellant of her obligation to submit a
comprehensive medical report supporting her claim for disability.
Appellant submitted a report dated June 20, 2007 from Dr. Murtagh stating that he treated
appellant for right knee symptoms beginning in January 2000 and that she underwent an
arthroscopic debridement on February 21, 2002. Dr. Murtagh stated, “[Appellant] did ultimately
have to take retirement from her previous position due to inability to perform tasks and duties
required as it related to her job as a letter carrier due to the osteochondral involvement in her
right knee.” By decision dated July 31, 2007, OWCP denied her claim for compensation finding
that she had not submitted the necessary medical evidence to meet her burden of proof.
Appellant requested reconsideration on September 26, 2007 and submitted medical
evidence. In a report dated September 17, 2007, Dr. Murtagh stated that she had an
osteochondral lesion of the left knee in November 2000 and required arthroscopic surgery in
2

The record indicates that appellant opted for disability retirement due to endometriosis as well as the presence of
degenerative symptomatology of knees and shoulders.
3

On June 12, 2004 appellant requested a schedule award. On August 26, 2005 OWCP granted her a schedule
award for 11 percent impairment of her right lower extremity. On February 23, 2006 appellant filed reconsideration
of the August 26, 2005 decision requesting an increase in her schedule award. By decision dated October 26, 2006,
OWCP denied appellant’s claim for an increased schedule award.

2

February 2002. He opined that appellant was currently totally disabled as she could not stand,
walk, twist, stoop, squat, bend or perform the tasks and duties required due to the osteochondral
lesion. On January 19, 2000 Dr. Murtagh noted her right shoulder, right elbow and right knee
conditions. He stated that appellant had increasing symptoms over the last two months.
Dr. Murtagh diagnosed inflammation of the right shoulder, lateral epiconylitis of the right elbow,
mild chondromalacia and inflammation of the right knee. He stated that appellant should
continue her full activities. On July 22, 2004 Dr. Murtagh stated that he planned to proceed with
arthroscopy and debridement for the right knee. By decision dated December 10, 2007, OWCP
reviewed the merits, but denied modification of its prior decisions finding that appellant had
failed to submit the necessary medical opinion evidence to establish disability due to her
accepted conditions beginning December 1, 2000.
Appellant requested reconsideration on December 8, 2008 through counsel submitting
narrative statements. On December 31, 2007 Dr. Murtagh repeated his September 17, 2007
report. By decision dated December 23, 2008, OWCP reviewed the merits and denied
modification of appellant’s claim.
Appellant, through counsel, requested reconsideration on December 22, 2009. On
June 18 and July 16, 2009 Dr. Murtagh evaluated her right knee and diagnosed bilateral/lateral
epicondylitis of the elbows of minimal involvement and right knee contusion with medial
femoral condylar chondral lesion. On August 13, 2009 he recommended osteochondral grafting
procedure. In a report dated December 16, 2009, Dr. Murtagh reviewed appellant’s medical
history and diagnosed right knee chondromalacia, chronic right shoulder tendinitis and chronic
right elbow lateral epicondylitis. He reviewed her date-of-injury positions description and stated,
“By December 2000, I advised her that she needed to go on disability. In my opinion,
[appellant] has not been able to work as a U.S. Postal Service City Carrier since
December 1, 2000.” Dr. Murtagh stated:
“With respect to [appellant’s] shoulder, the [magnetic resonance imaging scan] on
September 11, 2000, a short two months before she was forced to stop work,
demonstrated changes consistent with a tendinosis of the supraspinatus tendon
and fraying or tearing of the superior labrum. Significant joint effusion was also
present. Even absent the physical demands placed on [appellant] right elbow and
right shoulder once she stopped work in December 2000, her accepted right
shoulder and right elbow conditions did not markedly improve, supporting my
opinion that those conditions became chronic while she was working. Given
those chronic conditions, she has not been able to perform the repetitive reaching,
particularly above the shoulder reaching, required to case, pull down, deliver and
pick up mail. Since December 2000, [appellant] has been unable to carry a
mailbag on her right shoulder. Certainly, when viewed in conjunction with her
right knee accepted condition, [she] has been disabled from performing her job as
a postal employee since December 1, 2000.”
In regard to appellant’s right knee condition Dr. Murtagh stated:
“Given [appellant’s] permanent right knee aggravated chondromalacia, since
December 2000 she has not been able to stand for more than [two] hours, walk for

3

more than 100 feet, drive a vehicle, particularly not a jeep for more than [four]
hours or climb stairs for more than 2 flights. With her right knee, she is limited to
lifting no more than 40 pounds. Therefore, in my opinion, [appellant] has not
been able to perform her job as a U.S. Postal Service City Carrier, … since
December 1, 2000, because of the accepted conditions and has been disabled from
all other gainful employment in the absence of further surgery, physical therapy
and work hardening.”
By decision dated July 2, 2010, OWCP reviewed the merits of appellant’s claim and
denied modification of the December 23, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and 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.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
4

5 U.S.C. §§ 8101-8193.

5

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

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

4

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.10 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS
The record establishes that appellant stopped work in November 2000 and elected to
receive disability retirement benefits. Appellant’s statements suggest that she had cardiac and
reproductive health issues which contributed to her decision to opt for disability retirement. In
July 2003, she filed a claim alleging that she developed right knee and arm conditions due to
factors of her federal employment. OWCP accepted appellant’s occupational disease claim for
aggravation chondromalacia and right shoulder tendinitis. Appellant then filed a claim for
compensation requesting wage-loss compensation beginning December 1, 2000.
In support of her claim for disability beginning December 1, 2000, appellant has
submitted a series of reports from Dr. Murtagh, a Board-certified orthopedic surgeon, who has
indicated that he first examined her on January 19, 2000 and that he did not limit her work
activities at that time. In Dr. Murtagh’s December 2009 report, he reviewed her medical history
and provided her diagnosed conditions. He reviewed appellant’s date-of-injury position and
concluded, “By December of 2000, I advised her that she needed to go on disability. In my
opinion, [appellant] has not been able to work as a U.S. Postal Service City Carrier since
December 1, 2000.” Dr. Murtagh stated that by the time she stopped working her knee and arm
conditions were permanent and that she was totally disabled.
The Board finds that this case is not in posture for a decision. While the reports from
Dr. Murtagh are not sufficient to meet appellant’s burden of proof to establish her claim, they
raise an uncontroverted inference between her accepted conditions and periods of disability on
and after December 1, 2000 and are sufficient to require OWCP to further develop the medical
evidence and the case record.12
Appellant claimed that in December 2000 she was totally disabled to her accepted
employment injuries. Dr. Murtagh stated that her accepted knee and shoulder condition made
her incapable of performing her date-of-injury position. While he did not provide his treatment
notes from the time in question and did not provide bridging evidence, the Board finds that his
detailed analysis of appellant’s knee and shoulder conditions and her employment duties require
additional development on the part of OWCP.
10

Leslie C. Moore, 52 ECAB 132 (2000).

11

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

12

E.J., Docket No. 09-1481 (issued February 19, 2010); Virginia Richard (Lionel F. Richard), 53 ECAB 430
(2002); Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

5

On remand, OWCP should develop a statement of accept facts noting the medical history
as provided in the record and refer appellant for a second opinion evaluation to determine her
current conditions and disability as it relates to her accepted employment injuries as well as an
opinion as to whether her accepted condition disabled her from work on or after
December 1, 2000. It should also review the record and determine any intermittent periods of
disability to which she may be entitled due to her accepted conditions and resultant surgery.
After this and such other development as OWCP deems necessary, OWCP should issue a de
novo decision regarding any periods of disability established.
CONCLUSION
The Board finds that this case is not in posture for decision and requires additional
development of the medical evidence regarding any periods of disability resulting from
appellant’s accepted employment injuries beginning from December 1, 2000.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2010 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with this
opinion of the Board.
Issued: April 9, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, New York, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0434
Issued: February 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2019 appellant, through counsel, filed a timely appeal from a
November 8, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the November 8, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted October 23, 2016 employment incident.
FACTUAL HISTORY
On October 26, 2016 appellant, then a 44-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 23, 2016 she injured her lower back, left eye,
right shoulder, right elbow, and right hip, knee, ankle and foot, when the chair she was sitting in
tipped forward causing her to fall on the floor while in the performance of duty. She stopped work
on October 24, 2016.
Appellant was treated by Dr. Russell H. Silver, a Board-certified physiatrist, on
October 27, 2016, for an injury to her lumbar back, right leg, right arm, and right hip. Dr. Silver
advised that appellant was disabled from work.
In a November 10, 2016 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the requested information.
In an October 23, 2016 report, Dr. David L. Gutteridge, Board-certified in emergency
medicine, treated appellant for injuries sustained to her right side during a fall. He indicated that
appellant related that earlier that day she fell from a chair and was “told” that she struck her head
on a table, which she did not remember doing, and landed on her right shoulder. Findings on
examination revealed right hip tenderness, mild superior patellar tenderness, and limited passive
range of motion in the right hip. Dr. Gutteridge diagnosed right hip and shoulder pain status post
fall.4
By decision dated December 19, 2016, OWCP denied the claim finding that, although the
October 23, 2016 employment incident occurred as alleged, the medical evidence submitted was
insufficient to establish causal relationship between her diagnosed condition and the accepted
employment incident.
In an employing establishment staff injury assessment form dated October 23, 2016,
Dr. Robert Beaudouin, a Board-certified internist, treated appellant for a work-related injury,
which occurred when she fell from a sitting position onto her right side. He diagnosed right elbow
sprain/strain and right leg sprain/strain and recommended an elbow brace.
An October 23, 2016 x-ray of the right hip revealed no displaced fracture or dislocation,
contour deformity with a small osseous bump at the superolateral femoral head, prominent lateral
superior acetabular osteophyte, moderate osteoarthritic joint space narrowing, and femoral
acetabular impingement. X-rays of the lumbar spine dated November 3, 2016, revealed small
multilevel anterior osteophyte formation. A November 10, 2016 electromyogram and nerve
conduction velocity (EMG/NCV) study of the upper extremities revealed no evidence of peripheral
4

Appellant attended physical therapy sessions.

2

neuropathy or cervical radiculopathy. An EMG/NCV of the lower extremities of even date
revealed evidence of “bilateral L-S lumbosacral radiculopathy.”
A magnetic resonance imaging (MRI) scan of the lumbar spine dated November 15, 2016
revealed L5-S1 mild-to-moderate degenerative disc disease, left paramedian disc herniation, left
lateral recess stenosis with impingement of the left S1 nerve, moderate canal stenosis, L4-5 disc
bulge with small left lateral disc herniation, and encroachment on the left L4 nerve with mild left
foraminal stenosis.
In reports dated January 12 and February 2, 2017, Dr. Silver treated appellant in follow-up
of the October 23, 2016 fall. Findings on examination revealed decreased range of motion of the
lumbar spine, right hip pain, and right shoulder pain. Dr. Silver opined that appellant’s condition
and diagnoses were a direct result and causally related to the work injury that occurred on
October 23, 2016 and she was totally disabled. In a duty status report (Form CA-17) of even date,
he diagnosed capsulitis and disc disease and advised that appellant could not resume work at this
time. On February 16, 2017 Dr. Silver diagnosed lumbosacral radiculopathy, right shoulder
tendinitis, and capsulitis. He found that these diagnoses were a direct result of the injuries that
occurred on October 23, 2016 and were the competent producing cause of her existing pathology.
Dr. Silver performed a series of ultrasound-guided lumbar injections from March 2 through
May 25, 2017. On March 30, 2017 he opined that appellant continued to be totally disabled from
work due to the work-related accident that occurred on October 23, 2016.
On March 6, 2017 appellant requested reconsideration.
By decision dated May 24, 2017, OWCP denied modification of the December 19, 2016
decision.
Dr. Silver performed another series of ultrasound-guided lumbar injections from June 8
through October 12, 2017. On July 20, 2017 he diagnosed lumbosacral disc herniation,
lumbosacral radiculopathy, right hip capsulitis, and right shoulder tendinitis. Dr. Silver opined
that appellant’s diagnoses were the direct result of the work-related accident on October 23, 2016,
when she fell from a sitting position onto a concrete floor.
On August 7, 2017 appellant requested reconsideration.
By decision dated November 1, 2017, OWCP denied modification of the decision dated
May 24, 2017.
In a report dated December 7, 2017, Dr. Silver noted first treating appellant on October 27,
2016 for injuries to her right hip, knee, shoulder and low back sustained when she fell from a
broken chair onto a hard tiled floor at work. He provided a description of appellant’s job duties
and subsequent medical treatment. Dr. Silver noted that appellant reported that she was unable to
stand greater than 20 minutes and experienced right paraspinal and hip pain. He indicated that her
prognosis was poor and she continued to be totally disabled.
On February 1, 2018 appellant requested reconsideration.
By decision dated March 9, 2018, OWCP denied modification of the November 1, 2017
decision.
3

Dr. Silver continued to perform ultrasound-guided lumbar injections from May 3 through
October 18, 2018. On August 25, 2018 he noted appellant’s history was significant for a motor
vehicle accident in 2011 when she sustained injuries to her neck and low back, a right hip fracture
in 1986 after a fall, and a work injury in October 2016 when her chair tipped over and she fell onto
the concrete floor. Dr. Silver opined that appellant’s weight and the suddenness of the incident
caused lumbar radiculopathy and right hip labrum tear. He diagnosed lumbar radiculopathy and
right hip labrum tear. Dr. Silver opined that, after examination, review of the test results, and the
fact that appellant had no complications after her surgery in 1986 and the accident in 2011, the
incident that took place on October 23, 2016 was the competent producing cause of [appellant’s]
existing pathology and she was totally disabled.
On August 31, 2018 appellant requested reconsideration.
By decision dated November 29, 2018, OWCP denied modification of the March 9, 2018
decision.
On January 17, 2019 Dr. Arthur Becan, a Board-certified orthopedist, provided a history
of injury and examination findings. He diagnosed chronic post-traumatic lumbar strain and sprain;
aggravation of preexisting quiescent lumbar spine pathology (status post motor vehicle accident
in 2011); herniated discs at L3-4, L4-5; bilateral L5-S1 radiculopathy; EMG/NCV positive; posttraumatic subacromial impingement syndrome of the right shoulder; rotator cuff tendinopathy of
the right shoulder; severe adhesive capsulitis of the right shoulder; labral tear of the right hip;
aggravation of preexisting right hip pathology (status post slipped femoral capital aphysis at age
12 necessitating Knowles pinning with subsequent removal of pins); and severe osteoarthritis of
the right hip. Dr. Becan noted that appellant sustained significant musculoskeletal trauma to her
lumbar spine, right shoulder, and right hip secondary to the fall from a chair on October 23, 2016.
He explained that the fall from the chair resulted in a twisting and extension-type injury to her
lumbosacral spine, a twisting injury to her right hip, and a right shoulder injury when she attempted
to break her fall with her right upper extremity. Dr. Becan noted appellant’s medical history was
significant for a lumbosacral sprain that occurred during a motor vehicle accident in 2011 and a
slipped femoral capital aphysis of her right hip when she was 12, which required Knowles pinning.
He opined that the competent producing factor for appellant’s ongoing permanent orthopedic
disability, aggravation and acceleration of her preexisting lumbar spine and right hip pathology,
and subsequent increase in her overall permanent disability, was related to the work injury on
October 23, 2016.
Dr. Silver performed ultrasound-guided lumbar injections on February 28 through
March 21, 2019.
By decision dated May 10, 2019, OWCP denied modification of the November 29, 2018
decision.
In a September 18, 2019 report, Dr. Becan responded to counsel’s request that he review
the claim denial and provide a responsive, supplemental report. He noted his review of OWCP’s
denial of the claim and his prior report. In a supplemental report, Dr. Becan noted his prior opinion
and in support thereof cited to a medical publication. He again noted the onset of radicular pain
from the low back and hips following the accepted employment incident. Dr. Becan explained
that the pain complaints corresponded to examination findings and diagnostic test results. He
noted his reliance on a review and assessment of available epidemiologic evidence. Dr. Becan
4

noted his supportive opinion as to causal relationship was based upon the publication’s guidance
that “a worker with a low back injury who experiences pain shortly after that injury, is associated
with that exposure whether he or she has nonoccupational conditions or not.” He concluded that
the accepted fall at work was the precipitating factor in the development of the claimed conditions.
By decision dated November 8, 2019, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.9
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.10 The second component is whether the employment incident
caused a personal injury.11 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the employment incident.12
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.13 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a

5

Supra note 2.

6

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016).

9

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

11

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

12

Shirley A. Temple, 48 ECAB 404, 407 (1997).

13

T.H., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

5

complete factual and medical background.14 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.15
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.16
ANALYSIS
The Board finds that this case is not in posture for decision.
In his report dated January 17, 2019, Dr. Becan opined that appellant sustained significant
musculoskeletal trauma to her lumbar spine, right shoulder, and right hip secondary to the fall from
a chair on October 23, 2016. He opined that the competent producing factor for appellant’s
ongoing permanent orthopedic disability, aggravation and acceleration of her preexisting lumbar
spine and right hip pathology, and subsequent increase in her overall permanent disability, was
related to the accepted employment incident occurring on October 23, 2016. Dr. Becan explained
that the fall from the chair resulted in a twisting and extension-type injury to her lumbosacral spine,
a twisting injury to her right hip, and a right shoulder injury when she attempted to break her fall
with her right upper extremity. In a similar report dated September 18, 2019, he further explained
that appellant’s complaints of pain corresponded to examination findings and diagnostic test
results. Dr. Becan noted his opinion as to causal relationship was based upon epidemiologic
evidence that a worker with a low back injury who experiences pain shortly after that injury, is
associated with that exposure whether he or she has nonoccupational conditions or not. In
conclusion, he opined that the accepted employment incident was the precipitating factor in the
development of the claimed conditions.
The Board finds that the reports from Dr. Becan are sufficient to require further
development of the medical evidence. Dr. Becan is a Board-certified physician in orthopedics
who is qualified in his field of medicine to render rationalized opinions on the issue of causal
relationship and he provided a comprehensive understanding of the medical record and case
history. His reports provide a pathophysiological explanation as to how appellant’s fall from a
chair on October 23, 2016, resulted in her diagnosed lumbar spine, right shoulder, and right hip
conditions. The Board has long held that it is unnecessary that the evidence of record in a case be
so conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,

14

M.V., Docket No. 18-0884 (issued December 28, 2018).

15

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

16

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

6

sound, and logical.17 Accordingly, Dr. Becan’s medical opinion is therefore sufficient to require
further development of appellant’s claim.18
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.19 OWCP has an obligation to see that justice is
done.20
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to a specialist in the appropriate field of medicine. The chosen physician shall provide a
rationalized opinion as to whether the diagnosed conditions are causally related to the accepted
factors of appellant’s federal employment. If the physician opines that the diagnosed conditions
are not causally related, he or she must explain, with rationale, how or why the opinion differs
from that of Dr. Becan. Following this and such other further development as deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

17
W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
18

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
19

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
20

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.21
Issued: February 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

21

Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CARE SYSTEM,
Dallas, TX, Employer
__________________________________________

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

Docket No. 18-0959
Issued: October 16, 2018

Case Submitted on the Record

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

JURISDICTION
On April 9, 2018 appellant filed a timely appeal from a March 27, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established eligibility for continuation of pay.
FACTUAL HISTORY
On July 11, 2017 appellant, then a 46-year-old timekeeper, filed a traumatic injury claim
(Form CA-1) alleging that on October 13, 2016 he injured the back of his head and neck when he
was struck by a wooden plank while in the performance of duty. He signed the Form CA-1 on
July 11, 2017 and requested continuation of pay. The employing establishment advised that it had

1

5 U.S.C. § 8101 et seq.

received notice of the claimed injury on July 11, 2017. It controverted continuation of pay as
appellant did not file a claim within 30 days of the alleged employment incident.
OWCP accepted the claim for neck sprain and a concussion without loss of consciousness.
The employing establishment, on July 25, 2017, advised that it had removed appellant from
employment on November 21, 2016 due to unsatisfactory job performance.
By decision dated August 14, 2017, OWCP denied appellant’s claim for continuation of
pay as he had failed to submit a written claim within 30 days of his accepted July 11, 2017 work
injury. It also noted that he did not report the injury to the employing establishment until after it
terminated his employment.
Appellant, on August 21, 2017, requested a telephone hearing before an OWCP hearing
representative. At the telephone hearing, held on February 14, 2018, he advised that he waited to
file a claim because a coworker told him that he would lose his job if he took time off due to an
injury. Appellant indicated that he sought medical treatment immediately after the injury at the
emergency department.
By decision dated March 27, 2018, OWCP’s hearing representative affirmed the
August 14, 2017 decision. She found that appellant had not reported the injury on the CA-1 form
until July 11, 2017, more than 30 days after the accepted October 13, 2016 work injury and
subsequent to his termination of employment.
On appeal appellant describes his work injury and advises that coworkers informed him
that if he missed work due to an injury he would lose his job. He asserts that the employing
establishment terminated his employment because he could not keep up with his work and notes
that he had a witness to his injury. Appellant relates that he sustained additional injuries after
fainting.
LEGAL PRECEDENT
Section 8118(a) of FECA2 authorizes continuation of pay, not to exceed 45 days, to an
employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her
immediate superior on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of this title. This latter section provides that written notice of injury shall be
given within 30 days.3 The context of section 8122 makes clear that this means within 30 days of
the injury.4
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay, an
employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file a
Form CA-1 within 30 days of the date of the injury (but if that form is not available, using another

2

5 U.S.C. § 8118(a).

3

Id. at § 8122(a)(2).

4

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

2

form would not alone preclude receipt; and (3) begin losing time from work due to the traumatic
injury within 45 days of the injury.5
The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury.6 OWCP’s procedures provide that another OWCPapproved form, such as CA-2, CA-2a, or CA-7 forms, which contains words of claim, can be used
to satisfy timely filing requirements.7
The Board has held that section 8122(d)(3) of FECA,8 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because of
exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.9
ANALYSIS
The Board finds that appellant has not established eligibility for continuation of pay.
For employees who sustain a traumatic injury, FECA provides that the employing
establishment must continue the employee’s regular pay during any period of resulting disability,
up to a maximum of 45 calendar days. This is called continuation of pay. The employing
establishment, not OWCP, pays continuation of pay.10
One purpose of continuation of pay is to eliminate the interruption to the injured
employee’s salary due to delay between the notice of injury and payment of compensation
benefits.11 The late filing of a claim for a period of wage loss defeats that purpose.
Appellant filed a written notice of his traumatic injury on July 11, 2017, more than 30 days
after his injury on October 13, 2016. As he filed the claim on July 11, 2017, the Board finds that
it was not filed within 30 days of the accepted October 13, 2016 employment injury, as specified
in sections 8118(a) and 8122(a)(2) of FECA. Appellant did not officially file a written claim

5

20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

6

Id. at § 10.210(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter 2.807.5
(June 2012).
8

5 U.S.C. § 8122(d)(3).

9

Dodge Osborne, 44 ECAB 849, 855 (1993).

10

20 C.F.R. § 10.200(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Claims for Compensation,
Chapter 2.807.2 (June 2012).

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related to this incident within 30 days, and there is no provision in FECA for excusing a late
filing.12 Thus, he is not entitled to continuation of pay.13
On appeal appellant asserts that a coworker told him that he would lose his position if he
missed work due to his injury. He maintains that the employing establishment terminated him
because he could not keep up with his assigned duties. Appellant notes that he experienced
additional injuries. As discussed, however, there is no provision in FECA for excusing a late filing
when requesting continuation of pay.14 The Board finds that OWCP properly denied continuation
of pay as appellant did not file his claim within the requisite 30 days from the date of injury.15
This decision of the Board applies only to continuation of pay. It does not preclude
appellant from filing a claim for wage-loss compensation (Form CA-7).
CONCLUSION
The Board finds that appellant has not established eligibility for continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
12

See J.D., Docket No. 16-0104 (issued April 5, 2016); William E. Ostertag, 33 ECAB 1925, 1932 (1982).

13

See M.B., Docket No. 17-1782 (issued February 5, 2018).

14

See J.D., supra note 12.

15

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, NJ, Employer
__________________________________________

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Appearances:
Andrew M. Baron, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-605
Issued: October 21, 2013

Oral Argument July 23, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 17, 2013 appellant, through her attorney, filed a timely appeal from the
July 25, 2012 Office of Workers’ Compensation Programs’ (OWCP) decision which affirmed
the February 3, 2012 decision terminating her compensation benefits effective February 6, 2012.
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 OWCP properly terminated appellant’s compensation benefits
effective February 6, 2012.
FACTUAL HISTORY
On May 24, 2011 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
alleging that she slipped on a wet dock and fell to both knees. She stopped work on

1

5 U.S.C. § 8101 et seq.

May 24, 2011. OWCP accepted the claim for left knee sprain. Appellant received appropriate
compensation benefits.
A June 3, 2011 magnetic resonance imaging (MRI) scan of the left knee, read by
Dr. Michael Kessler, a Board-certified orthopedic surgeon, revealed a highly suspicious tear of
the anterior horn of the lateral meniscus, advanced chondromalacia of the patella and small joint
effusion with a one centimeter Baker’s cyst.
Appellant received treatment from Dr. Fauzia Hameed, a Board-certified internist, who
diagnosed left knee pain, left knee sprain and strain and placed her off work. She also received
treatment from Dr. Mark Zientek, a chiropractor, who diagnosed left knee derangement
“complicated by multiple VSC of the cervical, thoracic and lumbar spine.” In a July 27, 2011
report, Dr. Jeffrey M. Warshauer, a Board-certified orthopedic surgeon and osteopath, noted
appellant’s history of injury and treatment and examined her left knee. He diagnosed torn lateral
meniscus with preexisting chondromalacia patella. Dr. Warshauer recommended an arthroscopy.
On July 29, 2011 Dr. Hameed requested authorization for left knee arthroscopy. By letter
dated August 4, 2011, OWCP advised appellant that the arthroscopy could not be authorized as
her claim was only accepted for left knee sprain.
On August 26, 2011 OWCP referred appellant for a second opinion medical examination
with Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for an opinion regarding the nature
extent of her work-related condition and her ability to work.
In a September 9, 2011 report, Dr. Lakin described appellant’s history and examined her.
The left knee had minimal tenderness over the anterior patella tendon, no joint line tenderness, 0
to 120 degrees of motion, no effusion, negative patellofemoral grind, negative patellofemoral
crepitus, negative patellofemoral apprehension, negative Apley’s test, negative McMurray’s test,
and negative Ege’s test. Appellant had no anterior/posterior varus or valgus instability. Quad
and hamstring strength was normal and the sensation was intact. Dr. Lakin noted that appellant
had an MRI scan of her left knee, which revealed minimal chondromalacia to the patella, no
meniscal tears and intact ligaments. He advised that the June 3, 2011 x-rays revealed a highly
suspicious tear of the anterior horn of the lateral meniscus, advanced chondromalacia of the
patella and small joint effusion with a one-centimeter Baker’s cyst. Dr. Lakin indicated that
appellant sustained a sprain to the left knee and that, based upon his evaluation, she had excellent
strength and excellent motion to the knee with no disabling residuals. He advised that she
needed no further treatment for her left knee sprain and had no further disability. Dr. Lakin also
indicated that appellant did not have any concurrent nonwork-related disability. He opined that
she was capable of returning to her date-of-injury job full time, full duty, with no restrictions
states that there was “no reason why she cannot return to work full duty.” Dr. Lakin advised that
appellant did not suffer any other additional injuries on May 24, 2011. He indicated that she was
capable of performing her date-of-injury position without restrictions and had reached maximum
medical improvement. Dr. Lakin advised that there was no need for further treatment, and that
he would not recommend a work capacity evaluation or a work hardening program.
On October 21, 2011 OWCP proposed to terminate appellant’s benefits based on the
report of Dr. Lakin, which established that the residuals of the work injury of May 24, 2011 had

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ceased. Appellant was given 30 days to submit additional evidence or argument. She continued
submitting treatment records from her chiropractor, Dr. Zientek and a physical therapist. Also
submitted treatment notes from November 9, 2011 to January 9, 2012 from Dr. Hameed reported
appellant’s status and diagnosed chondromalacia patellae, suprapatellar bursitis, knee joint pain
and left knee strain and sprain.
By decision February 3, 2012, OWCP terminated appellant’s compensation benefits
effective February 6, 2012 on the grounds that she had no continuing residuals of her
employment injury.
In a February 4, 2012 treatment note, Dr. Hameed noted that appellant was diagnosed
with knee pain, chondromalacia patella and suprapatella bursitis. He placed her out of work until
March 9, 2012. Dr. Hameed continued to treat appellant and submit treatment records.
In a February 28, 2012 treatment note, Dr. Zientek, a chiropractor, indicated that
appellant had biomechanical dysfunctions at multiple spinal levels, exacerbated at the lower back
condition due to the left knee instability and pain, which was affecting her gait and aggravating
the lower back. He diagnosed exacerbation of spinal condition, lumbosacral muscle spasms,
sacroiliac joint dysfunction and “VSC” of the lumbar spine. Dr. Zientek continued to treat
appellant and submit reports.
On February 17, 2012 appellant requested a hearing, which was held on June 18, 2012.
During the hearing, counsel indicated that a new medical report would be forthcoming.
However, OWCP did not receive any medical reports after the hearing.
By decision dated July 25, 2012, OWCP’s hearing representative affirmed the
February 3, 2012 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5

2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Calvin S. Mays, 39 ECAB 993 (1988).

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In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given each
individual report.6
ANALYSIS
OWCP accepted that appellant sustained a left knee sprain. It paid appropriate benefits
and subsequently referred her to Dr. Lakin for a second opinion evaluation.
In his September 9, 2011 report, Dr. Lakin examined the left knee and noted findings that
included minimal tenderness over the anterior patella tendon. He stated that an MRI scan of the
left knee revealed minimal chondromalacia to the patella, no meniscal tears and intact ligaments.
Dr. Lakin also advised that the June 3, 2011 x-rays revealed a highly suspicious tear of the
anterior horn of the lateral meniscus, advanced chondromalacia of the patella and small joint
effusion with a one-centimeter Baker’s cyst. He indicated that appellant sustained a sprain to the
left knee and that, based upon his evaluation, she had excellent strength and excellent motion in
the knee with no disabling residuals. Dr. Lakin opined that she needed no further treatment for
her left knee sprain and had no disability. He also indicated that appellant did not have any
concurrent nonwork-related disability. Dr. Lakin opined that she was capable of returning to her
date-of-injury job full time, full duty with no restrictions and there was “no reason why she
cannot return to work full duty.” He advised that he would not recommend a work capacity
evaluation or a work hardening program. However, the Board finds that this report is
incongruous and contradictory. On the one hand, Dr. Lakin advises that there are no meniscal
tears and the ligaments were intact on MRI scan. In the same report, he notes that the June 3,
2011 radiology films were highly suspicious for tear of the anterior horn of the lateral meniscus,
advanced chondromalacia of the patella, small joint effusion with a one-centimeter Baker’s cyst.
The Board finds this finding is conflicted and notes these issues should have been developed or
clarified with regard to whether appellant continued with employment-related residuals. OWCP
should have sought a supplemental opinion from Dr. Lakin and such additional evaluation and
testing as is necessary.7
The Board finds that Dr. Lakin’s report was insufficiently rationalized to establish that
appellant ceased to have any disability or condition causally related to her employment injuries.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective February 6, 2012.
Subsequent to oral argument, counsel submitted several arguments. They included that
appellant’s compensation benefits were prematurely terminated and that she continued to have

6

See Connie Johns, 44 ECAB 560 (1993).

7

See Mae Z. Hackett, 34 ECAB 1421 (1983) (once OWCP undertakes to develop the medical evidence it has the
responsibility to obtain an evaluation that resolves the issue).

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work-related injuries that prevented her from performing her date-of-injury position. However,
in light of the Board’s finding, it is premature address these arguments.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in terminating appellant’s
compensation benefits effective February 6, 2012.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 21, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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DEPARTMENT OF THE ARMY, ARMY
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NATIONAL GUARD, Greenville, KY,
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Employer
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_________________________________________ )
W.S., Appellant

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

Docket No. 13-999
Issued: July 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 19, 2013 appellant filed a timely appeal from the November 8, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his injury
claim. 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 sustained a traumatic injury in the performance of duty on
September 27, 2012, as alleged.
FACTUAL HISTORY
On October 1, 2012 appellant, a 33-year-old surface maintenance mechanic, filed a
traumatic injury claim alleging that he injured his lower back in the performance of duty on
1

5 U.S.C. § 8101 et seq.

September 27, 2012 while removing a radiator from a six-ton tractor. He described the nature of
his injury as pain and stiffness.
OWCP informed appellant that no diagnosis of his condition was provided, nor was a
physician’s opinion as to how the incident resulted in his diagnosed condition. It explained that
medical evidence must be submitted by a qualified physician and that nurse practitioners were
not considered qualified physicians. Further, OWCP advised that the medical evidence must
contain a valid medical diagnosis and that a finding of pain alone was insufficient, as it was a
symptom and not a diagnosis.
OWCP received an attending physician’s form report signed by a registered nurse. The
nurse provided no diagnosis but indicated with an affirmative mark that appellant’s condition
was caused or aggravated by the described employment activity.
By decision dated November 8, 2012, OWCP denied appellant’s claim for workers’
compensation benefits. It found that the incident at work occurred as alleged, but he failed to
submit medical evidence containing a diagnosis or medical evidence establishing that a
diagnosed medical condition was causally related to the work incident. Further, OWCP noted
that the evidence submitted was from a nurse or nurse practitioner, who is not considered a
qualified physician.
On appeal, appellant submits a February 22, 2013 narrative report from the same
registered nurse to address the element of causal relationship.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the

2

5 U.S.C. § 8102(a).

3

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

4

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

5

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

6

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

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nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
OWCP accepts that on September 27, 2012 appellant was removing a radiator from a sixton tractor while in the performance of duty. Appellant has therefore met his burden to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. The question that remains is whether his work activity that day caused an
injury.
Appellant indicated that he had pain and stiffness in his low back, but the record contains
no medical diagnosis of his condition. Further, the record contains no medical opinion on the
issue of causal relationship. The only medical evidence appellant submitted to support his claim
was an attending physician’s form report signed by a registered nurse. A nurse, however, is not a
“physician” within the meaning of FECA and is therefore not competent to offer a medical
opinion on the issue of causal relationship.8 As a result, there is no probative medical evidence
that appellant sustained an injury.
As appellant has not submitted a medical opinion from a qualified physician soundly
explaining how his work activity on September 27, 2012 caused a diagnosed medical condition,
appellant has failed to meet one of the essential elements of his claim. He has failed to establish
the critical element of causal relationship. Accordingly, the Board will affirm OWCP’s
November 8, 2012 decision denying appellant’s claim for benefits.
The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.9 The Board therefore has no jurisdiction to review the registered
nurse’s February 22, 2013 narrative report that appellant has submitted to the Board.
Nonetheless, 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 his burden to establish that he sustained a
traumatic injury in the performance of duty on September 27, 2012, as alleged. The medical
evidence appellant submitted came from a registered nurse, who is not a physician as defined
under FECA.
7

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

8

Vicky L. Hannis, 48 ECAB 538 (1997); see 5 U.S.C. § 8101(2) (the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by state law).
9

20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the November 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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