United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, FORTSON POST
OFFICE, Fortson, GA, Employer
__________________________________________

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

Docket No. 19-1105
Issued: November 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 16, 2019 appellant filed a timely appeal from an October 19, 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 met his burden of proof to establish that he sustained a
hernia causally related to the accepted March 12, 2018 employment incident.
FACTUAL HISTORY
On March 15, 2018 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging on March 12, 2018 that he sustained a hernia when he lifted and carried a
package containing a set of weights from his mail truck to the customer’s door while in the
performance of duty. He indicated that he continued to work, but could barely walk after his route.
1

5 U.S.C. § 8101 et seq.

On the reverse side of the form, the postmaster noted that the injury occurred in the performance
of duty.
On March 16, 2018 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16) authorizing medical treatment for his alleged
March 12, 2018 employment injury.2
In a March 22, 2018 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On April 5, 2018 Terri Jordan, a physician assistant, examined appellant due to a right
lower quadrant bulge which began on March 11, 2018. She diagnosed femoral hernia. On April 7,
2018 Ms. Jordan completed a duty status report (Form CA-17) and diagnosed right inguinal hernia.
In an April 13, 2018 response to OWCP’s questionnaire, appellant alleged that his injury
occurred on March 12, 2018 when he delivered a box of weights while in the performance of duty.
He provided a March 17, 2018 note from Dr. Hafsa Bhatti, a family practitioner, diagnosing
recurrent unilateral inguinal hernia.
By decision dated April 25, 2018, OWCP accepted that the March 12, 2018 employment
incident occurred as alleged and that there was a diagnosed condition. However, it denied
appellant’s traumatic injury claim finding that the medical evidence of record was insufficient to
establish causal relationship between his accepted March 12, 2018 employment incident and his
diagnosed condition of right-side unilateral inguinal hernia.
On May 11, 2018 appellant requested a review of the written record from an OWCP
hearing representative. He provided additional treatment notes from Ms. Jordan dated April 12,
26, and 27, 2018.
In a note dated May 8, 2018, Dr. Joseph Kaplan, Board-certified in emergency medicine,
diagnosed work-related femoral hernia. He noted that appellant’s symptoms began on March 11,
2018 and that his findings on examination and diagnosis were most likely consistent with the injury
reported by appellant. Dr. Kaplan examined appellant on August 15, 2018 and repeated his
diagnosis of unilateral femoral hernia.
By decision dated October 19, 2018, an OWCP hearing representative affirmed the
April 25, 2018 decision finding that the medical evidence of record was insufficient to establish
appellant’s claim as it did not contain rationalized medical opinion evidence explaining how his
diagnosed condition of inguinal hernia was caused or aggravated by the accepted March 12, 2018
employment incident.
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
2

In support of his claim, appellant provided an unsigned note dated March 17, 2018 diagnosing a right-side inguinal
hernia.

2

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon complete factual and medical background, showing a causal relationship
between the claimed condition and the identified factors.7 The belief of the claimant that a
condition was caused or aggravated by the employment is insufficient to establish a causal
relationship.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
a hernia causally related to the accepted March 12, 2018 employment incident.

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Id.

7

R.R., Docket No. 18-1093 (issued December 18, 2018); Lourdes Harris, 45 ECAB 545 (1994); see Walter D.
Morehead, 31 ECAB 188 (1979).
8

M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
9

A.W., Docket No. 19-0327 (issued July 19, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB
345 (1989).

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In support of his claim, appellant submitted a May 8, 2018 report from Dr. Kaplan
diagnosing work-related femoral hernia. He noted that appellant’s symptoms began on March 11,
2018 and that the findings on examination and diagnosis were most likely consistent with the injury
reported by appellant. Dr. Kaplan opined that the accepted employment incident likely caused
appellant’s hernia. The Board finds that his opinion was speculative in nature and he did not
sufficiently explain how the accepted incident caused or aggravated the diagnosed condition.10
Without explaining how, physiologically, the movements involved in the employment incident
caused or contributed to a diagnosed condition, Dr. Kaplan’s opinion is of limited probative value
and insufficient to establish causal relationship.11
On March 17, 2018 Dr. Bhatti diagnosed recurrent unilateral inguinal hernia. While she
provided a firm medical diagnosis, she offered no opinion as to the cause of the diagnosed
condition. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.12
Thus, the Board finds this evidence insufficient to establish appellant’s claim.
Appellant also submitted treatment notes from a physician assistant.13 The Board has held,
however, that a physician assistant is not considered a physician as defined under FECA.14 Reports
from a physician assistant will only be considered medical evidence if countersigned by a qualified
physician.15 Thus, as there is no countersignature by a qualified physician, these notes do not
constitute competent medical evidence and have no probative value.16 As such, this evidence is
insufficient to meet appellant’s burden of proof.

10

S.R., Docket No. 18-1295 (issued March 20, 2019); G.M., Docket No. 18-0989 (issued January 3, 2019).

11

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).

12

S.G., Docket No. 18-1373 (issued February 12, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
13

Appellant also submitted an unsigned note dated March 17, 2018. This report does not constitute probative
medical evidence. The Board has held that a report may not be considered as probative medical evidence if there is
no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports
lacking proper identification do not constitute probative medical evidence. C.B., Docket No. 09-2027 (issued
May 12, 2010).
14

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. See 5 U.S.C. § 8102(2); see
M.H., Docket No. 18-1737 (issued March 13, 2019); M.M., Docket No. 16-1617 (issued January 24, 2017) (lay
individuals such as physician assistants and physical therapists are not competent to render a medical opinion under
FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a
medical issue such as causal relationship can only be resolved through the submission of probative medical evidence
from a physician).
15

J.P., Docket No. 19-0197 (issued June 21, 2019); D.B., Docket No. 18-1359 (issued May 14, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
16

D.F., Docket No. 19-0108 (issued April 16, 2019); T.H., Docket No. 18-1736 (issued March 13, 2019).

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As the record lacks rationalized medical evidence establishing causal relationship between
the March 12, 2018 employment incident and appellant’s hernia, he has not met his burden of
proof.17
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 of proof to establish that he sustained
a hernia causally related to the accepted March 12, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

17

A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018);
N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTE, Fort Dix, NJ,
Employer
__________________________________________

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

Docket No. 15-1019
Issued: March 29, 2016

Case Submitted on the Record

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

JURISDICTION
On April 2, 2015 appellant, through counsel, filed a timely appeal from a January 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 17, 2014.
On appeal, appellant’s counsel contends that the weight of the medical evidence is not
represented by the medical opinion of the impartial medical examiner as it is not well reasoned
and contains numerous errors.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On June 9, 2005 appellant, then a 43year-old accounting technician, filed a traumatic injury claim (Form CA-1) alleging that, while
walking back from the employing establishment’s east compound, she twisted her ankle on
stones that were laying on the sidewalk. OWCP accepted appellant’s claim for sprain/strain of
the left ankle. It paid wage-loss compensation and medical benefits, but terminated all
compensation benefits effective June 30, 2012 as it determined that appellant had no residuals of
the injury-related medical condition. Appellant requested a hearing. By decision dated
January 11, 2013, an OWCP hearing representative affirmed this decision.
Appellant appealed to the Board on June 4, 2013.2 By decision dated March 5, 2014 the
Board reversed the termination of benefits. The Board noted that in terminating appellant’s
benefits, OWCP relied upon the opinion of the second opinion physician, Dr. Stanley Askin, a
Board-certified orthopedic surgeon, who opined that appellant was fully recovered from her
employment injury. However, the Board found that Dr. Askin’s opinion conflicted with the
opinion of appellant’s treating podiatrist, Dr. Joseph A. Megara, who reported that appellant was
still being treated for a high-grade ankle sprain and that she should continue in her current
sedentary position. The Board found that at the time OWCP terminated appellant’s
compensation there was an unresolved conflict in the medical evidence and that therefore,
OWCP had not met its burden of proof to terminate appellant’s benefits. The facts as set forth in
the Board’s prior decision are incorporated herein by reference.3
On April 2, 2014 OWCP referred appellant to Dr. Samuel Epstein, a Board-certified
osteopath, for an impartial medical examination. In a May 19, 2014 report, Dr. Epstein reviewed
appellant’s employment and medical history, including prior magnetic resonance imaging (MRI)
scans and x-rays, and conducted a physical examination noting that there was tenderness to
palpitation over the lateral collateral ligaments, syndesmosis and deltoid ligaments, tenderness to
palpation over the Achilles tendon insertion into the calcaneus, and tenderness to palpitation over
the medial and lateral malleolus. He checked the active range of motion of the ankle and
provided measurements for range of motion and girth.
Dr. Epstein diagnosed mild high left ankle sprain which was directly caused by the
June 9, 2005 employment incident, mild recurrent high left ankle sprain on or about August 6,
2005 which was a temporary aggravation of the high left ankle sprain, and iliotibial band
syndrome with trochanteric bursitis of the right hip not related to the June 9, 2005 injury. He
opined that appellant had fully recovered from the effects of the June 9, 2005 employment
injury. Dr. Epstein noted that when appellant was unaware of being watched, her gait was
normal. He noted no calf atrophy to suggest significant functional deficit in the left foot and
ankle. Dr. Epstein noted that since her gait was normal, she was able to dorsiflex the left ankle,
despite not dorsiflexing the left ankle when asked during examination. He also noted that x-rays
of the left ankle taken in the office compared to x-rays previously taken of her right ankle
showed no significant post-traumatic arthritis and no calcifications within the syndesmotic
ligament. Dr. Epstein noted that appellant did complain of post-traumatic chronic pain but that
2

Docket No. 13-1438 (issued March 3, 2014).

3

Id.

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this could not be verified due to symptom magnification. He stated that decreased range of
motion of her left ankle could not be verified due to sub-maximal effort. Dr. Epstein did note
swelling of the left ankle and left calf, but there was no evidence to support that it was related to
the employment injury of June 9, 2005. He did not observe tendon injuries or medial or lateral
collateral ligament injuries on either of the MRI scans. Dr. Epstein opined that no additional
medical treatment was necessary. He indicated that appellant had reached maximum medical
improvement by February 6, 2006 (three to six months after recurrent left high ankle sprain).
On June 12, 2014 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits as the weight of the medical evidence established that appellant no longer
had any residuals or continued disability from work as a result of the June 9, 2005 employment
injury.
By letter dated June 18, 2014, appellant’s counsel objected to the proposed termination.
By letter dated June 19, 2014, OWCP asked Dr. Epstein to respond to certain questions.
Dr. Epstein submitted handwritten responses, referring OWCP to appendixes of his report with
regard to measurements for loss of motion or atrophy. He also responded that the swelling in
appellant’s left ankle and calf was not due to her injury, noting normal gait and minimal findings
on her MRI scan. Dr. Epstein further opined that appellant had recovered from her employment
injury, noting that mild spasms as evinced by MRI scan should heal within three to six months.
On July 14, 2014 Dr. Epstein submitted typed responses to OWCP’s queries. He again
referred OWCP to the appendix of his May 19, 2014 report. With regard to the swelling in
appellant’s left ankle and calf and decreased sensation in her left lower extremity, Dr. Epstein
provided further rationale to explain why these findings were not the result of her work injury.
Specifically, he noted the paucity of radiographic findings, the subjectivity of the decreased
sensation, the lack of the decreased sensation following a specific peripheral nerve distribution,
and the presence of magnification signs. Dr. Epstein noted that these findings made it more
likely than not that the swelling was due to other etiologies such as venous or lymphatic issues.
He also noted decreased sensation due to magnification symptoms or peripheral neuropathy.
Dr. Epstein concluded that the swelling in the left calf and ankle and decreased sensation are
more likely than not unrelated to the accident of June 9, 2005 as peripheral neuropathy is not
caused by trauma. He further explained his conclusion that appellant had recovered from the
employment injury by noting that mild sprains, such as those indicated by the MRI scan and lack
of post-traumatic arthritis or calcifications within the syndesmotic ligament (nine years after the
injury) and by x-rays, fully heal within three to six months after injury.
By decision dated July 17, 2014, OWCP terminated appellant’s compensation and
medical benefits effective that date.
On July 22, 2014 appellant, through counsel, requested a hearing before an OWCP
hearing representative. At the hearing held on November 24, 2014, appellant’s counsel argued
that Dr. Epstein tested range of motion passively, not actively. He also argued that Dr. Epstein
did not indicate that the accepted condition was resolved. Counsel further argued that when
Dr. Epstein looked at x-rays he noted no significant calcification or significant post-traumatic
arthritis of the left ankle, which indicates some residuals. He argued that Dr. Epstein gave no
rationale for his conclusion that the swelling in appellant’s left ankle and calf and decreased
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sensation were unrelated to the accident. Counsel concluded that for these reasons, Dr. Epstein’s
report should not carry the weight of evidence.
By decision dated January 27, 2015, the hearing representative affirmed OWCP’s
July 17, 2014 termination of benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 Following a
proper termination of compensation benefits, the burden of proof shifts back to claimant to
establish continuing employment-related disability.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which requires further medical treatment.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.9 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well-rationalized and based
upon a proper factual background, must be given special weight.10
ANALYSIS
OWCP accepted appellant’s claim for a sprain/strain of the left ankle causally related to
an employment injury that occurred on June 9, 2005. However, it terminated appellant’s medical
and compensation benefits effective July 17, 2014. The Board finds that OWCP met its burden
of proof to terminate appellant’s compensation and medical benefits based on the wellrationalized opinion of the impartial medical examiner, Dr. Epstein.
4

Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013).

5

John F. Glynn, 53 ECAB 155 (2001).

6

See T.P., 58 ECAB 524 (2007).

7

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

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When issuing the March 5, 2014 decision reversing the termination of benefits, the Board
found that the relevant and probative medical evidence was in equipoise, that OWCP should
have referred appellant’s case to an impartial medical examiner, and that as OWCP failed to
resolve the conflict in medical evidence, it did not meet its burden of proof in terminating
appellant’s wage-loss compensation and medical benefits.
Upon return of the case record, OWCP referred appellant to Dr. Epstein to resolve the
conflict in the evidence. Dr. Epstein reviewed appellant’s employment history and medical
record, including prior x-rays and MRI scans and submitted responses to questions asked by
OWCP. He diagnosed mild high left ankle sprain directly caused by the employment injury and
mild recurrent high level ankle sprain on or about August 6, 2005 which was a temporary
aggravation of the existing mild high left ankle sprain. Dr. Epstein opined that no further
medical treatment was necessary for appellant’s related condition. He also opined that appellant
had fully recovered from the effects of the June 9, 2005 employment injury. In support of his
conclusions, Dr. Epstein noted that when appellant was unaware that she was being watched, her
gait was normal. He noted no calf atrophy to suggest significant functional deficit in the left foot
and ankle. Dr. Epstein also reviewed appellant’s x-rays of the left ankle and found no significant
post-traumatic arthritis and no calcifications within the syndesmotic ligament. He opined that
the swelling in appellant’s left ankle and calf and decreased sensation in her left lower extremity
was unrelated to the employment injury. In further support of his conclusion that appellant had
recovered from her employment injury, Dr. Epstein noted that mild sprains, such as those
evinced by appellant’s objective tests, fully heal within three to six months after the injury.
When a case is referred to an impartial medical examiner to resolve a conflict, the
resulting medical opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11 The Board finds that OWCP properly deferred to
Dr. Epstein’s findings in concluding that appellant’s compensation and medical benefits should
be terminated. The impartial medical examiner provided a well-reasoned report based on a
proper factual and medical history. Additionally, Dr. Epstein conducted a thorough physical
examination of appellant, and his reports included detailed findings and medical rationale
supporting his opinion.12 As the impartial medical examiner, Dr. Epstein’s opinion was entitled
to special weight.13
Counsel’s arguments that Dr. Epstein’s opinion is insufficient to represent the weight of
the evidence are unpersuasive. Counsel contends that Dr. Epstein only measured passive loss of
motion in the left ankle. Dr. Epstein did take range of motion measurements, but noted that
appellant provided a sub-maximal effort on examination. His statement that the x-rays showed
no significant post-traumatic arthritis or calcifications does not logically infer that there was
some residuals. Furthermore, Dr. Epstein clearly noted in his reports that appellant had no posttraumatic arthritis and that the employment injury would have resolved within three to six
months based on appellant’s diagnostic tests. Finally, contrary to counsel’s assertions, he
explained his conclusions as to why the swelling in appellant’s left ankle and calf and decreased
sensation in her left lower extremity were not the result of the employment injury when he noted
11

Gary R. Sieber, 46 ECAB 215, 225 (1994).

12

See D.S., Docket No. 13-1326 (issued November 8, 2013).

13

Supra note 11.

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that paucity of radiographic findings, the subjectivity of decreased sensation, and the presence of
magnification issues. Dr. Epstein opined that all of these factors made it more likely that these
symptoms were due to other etiologies such as venous or lymphatic issues. He also explained
that the swelling was more likely unrelated to the employment injury as peripheral neuropathy is
not caused by trauma. Dr. Epstein also indicated that appellant’s injury occurred in 2005 and
that her injuries would have been expected to have resolved within three to six months.
Dr. Epstein, the impartial medical examiner, provided a rationalized medical opinion in
this case. Therefore, the Board finds that OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as Dr. Epstein concluded that no further medical
treatment was necessary and that appellant had fully recovered from the effects of the June 9,
2005 injury.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 17, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2015 is affirmed.
Issued: March 29, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
M.H., Appellant

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

Docket No. 08-1218
Issued: October 8, 2008

Case Submitted on the Record

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

JURISDICTION
On March 11, 2008 appellant filed a timely appeal of the March 4, 2008 merit decision of
the Office of Workers’ Compensation Programs which denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant sustained an occupational disease in the performance of
duty.
FACTUAL HISTORY
On December 18, 2006 appellant, then a 48-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained bilateral carpal tunnel syndrome and
bilateral arm pain in the performance of duty. He stated that he did not have any complaints with
his hands when he started at his position but by June 2006 his thumb began to bother him.

Medical evidence was submitted. A February 9, 2006 health history questionnaire and
subsequent physical examination records were submitted. In a November 14, 2006 note,
Dr. Zane E. Uhland, an osteopath, prescribed light duty for two weeks. In a separate
November 14, 2006 note, he reported that appellant worked in an area with repetitive motion and
use of his hands. Dr. Uhland also noted that appellant had multiple overuse injuries including
trigger thumbs bilaterally, carpal tunnel syndrome bilaterally and radial tunnel syndrome. He
explained that appellant’s osteoarthritis will progress.
In notes dated November 16 to December 11, 2006, Dr. Edmond Hooks1 provided
restrictions for appellant’s work. In a November 16, 2006 progress note, he noted that appellant
had carpal tunnel release on the right in May 2005 and was not having any problems by the time
he started work at the employing establishment in February 2006. Dr. Hooks noted that both
thumbs began to bother him in June 2006 and he received steroid injections by his doctor at that
time. He also noted that appellant’s condition worsened two-weeks earlier and that appellant had
difficulty holding items. Dr. Hooks restricted appellant to a 10-pound weight restriction.
In a November 28, 2006 note, Dr. Uhland noted that appellant should remain off work
until December 7, 2006. In a November 28, 2006 outpatient summary, he noted that appellant
presented for an evaluation of his bilateral wrists and thumbs. Dr. Uhland diagnosed bilateral
trigger thumbs, bilateral carpal tunnel syndrome and radial tunnel syndrome. He referred
appellant to Dr. M. Sean O’Brien, an osteopath.
In a December 8, 2006 clinic note, Dr. O’Brien related that appellant reported he was
having thumb pain and numbness and tingling in his upper extremities on July 6, 2006. He also
noted appellant’s carpal tunnel release on his right wrist in 2005. In a December 8, 2006 note,
Dr. O’Brien stated that appellant could return to work on December 11, 2006 with restrictions.
On December 27, 2006 the Office requested additional factual and medical information
from appellant in order to develop his claim. Appellant responded in a January 25, 2007 letter in
which he explained that his position requires a lot of repetitive motion especially with his hands
as he installs upper and lower production breaks using drills, guns and rivets. He also disclosed
that he had bilateral carpal tunnel in the right hand in 2005.
In a January 2, 2007 letter, Dr. Gabriel M. Pitman, an osteopath, stated that he previously
saw appellant on January 4, 2005 and that he continues to have difficulty in his upper
extremities. He reported that appellant’s weakness in the hands has gotten progressively worse.
Dr. Pitman reported that the electromyogram (EMG) clinical interpretation revealed
electrophysiological evidence of mild to moderate right median neuropathy at the wrist, mild left
median neuropathy at the wrist, moderate bilateral ulnar neuropathies at the elbows, right radial
neuropathy, and mild distal axonal sensory polyneuropathy. He noted that appellant has
developed numbness and loss of sensation in the hands.
In a February 20, 2007 merit decision, the Office denied appellant’s occupational disease
claim finding that medical evidence did not demonstrated that he sustained a medical condition
as a result of the established work-related events.
1

Board certification could not be identified.

2

Additional medical evidence was received. In a January 8, 2007 clinic report,
Dr. O’Brien noted appellant’s symptoms in his wrist and pain in his elbow. He found that the
EMG nerve conduction noted that appellant had what appears to be mild to moderate carpal
tunnel on the right and mild on the left as well as moderate bilateral ulnar nerve neuropathy and
right radial nerve neuropathy. On February 21, 2007 Dr. O’Brien evaluated appellant who was
there for a follow up on his right arm and was ready to proceed with surgery consisting of a ulnar
nerve decompression at the elbow, radial tunnel injection, repeat carpal tunnel release on the
right, trigger release to the right thumb. In an April 4, 2007 visit note, he recorded that appellant
appeared for a repeat evaluation of this right upper extremity. In an April 9, 2007 note,
Dr. O’Brien recorded that appellant continued to have significant pain and tenderness in his arm
and that he was scheduled for a decompression of the ulnar nerve and median nerve at the elbow
and wrist and that he received an injection in his radial tunnel. In an April 19, 2007 operative
report, he described the procedures performed: ulnar nerve decompression with anterior
subcutaneous transposition, right elbow, open carpal tunnel release on the right. On April 27,
2007 appellant followed up with Dr. O’Brien for his right thumb trigger release, ulnar nerve
decompression and carpal tunnel release. In a May 2, 2007 clinic note, Dr. O’Brien recorded
that appellant presented to follow up on his ulnar decompression and trigger finger release and
injection on April 19, 2007. In a June 4, 2007 clinic note, he noted appellant’s wounds had
healed and he was status post carpal tunnel release, ulnar nerve decompression, trigger release
and injection of the radial tunnel. In an August 27, 2007 clinic note, Dr. O’Brien found that
appellant had tenderness to palpation in his radial tunnel in both the right and left hands. In an
October 23, 2007 medical record, Dr. Hooks noted appellant’s reported left forearm pain
ongoing since September 24, 2007.
In an October 30, 2007 letter, Dr. Uhland reported appellant’s medical history, and noted
that “it was apparent that the high mechanical stress of his occupation, specifically working with
his hands including power equipment, was in direct relation to his multiple overuse complaints,
including his cubital tunnel, radial tunnel and bilateral trigger thumbs. He reported that
appellant’s care was transferred to Dr. O’Brien, hand surgeon, in December 2006 and he did not
see him again until October 30, 2007. Dr. Uhland also opined that appellant had suffered from
overuse injuries to his bilateral upper extremities.
In a November 28, 2007 letter, Dr. O’Brien opined that, based on appellant’s history of
repetitive activities, consisting of mostly drilling holes and repetitive activities as a sheet metal
mechanic, that his symptoms and nerve compression were likely a result of the cumulative
trauma associated with his work and the repetitive activities he performed there.
On November 29, 2007 appellant requested reconsideration.
In a March 4, 2008 merit decision, the Office denied appellant’s claim for an
occupational disease finding that the medical reports were not well rationalized, failed to include
a complete history of injury and failed to include appellant’s medical history prior to his federal
employment.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.3
Causal relationship is a medical issue4 which is established though medical evidence
which must include a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established employment factors. 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 certainty6 and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
established factors of employment.7
ANALYSIS
Appellant alleged that his bilateral upper extremity conditions: carpal tunnel syndrome,
trigger thumb, and radial tunnel syndrome, were causally related to his federal employment
specifically repetitive use of his hands. The Office accepted appellant’s identified employment
factors. The issue is whether the medical evidence is sufficient to establish that appellant’s
diagnosed bilateral carpal tunnel syndrome, bilateral trigger thumb and bilateral radial tunnel
syndrome are causally related to his employment.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

4

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

5

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

6

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

7

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

4

The medical evidence submitted did not establish that appellant’s conditions were
causally related to his employment. Dr. Uhland opined that appellant working with his hands
was in direct relation to his overuse complaints however his opinion is not supported by medical
rationale explaining the nature of the relationship between the diagnosed conditions and the
established factors of employment. He did not describe how appellant’s work with his hands and
use of power equipment caused him to develop carpal tunnel syndrome, trigger thumb, and radial
tunnel syndrome. A mere conclusion without medical rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet the claimant’s burden of proof. The medical evidence must include
rationale explaining how the physician reached the conclusion he or she is supporting.8
Dr. O’Brien opined that appellant’s symptoms and nerve compression were likely a result of the
cumulative trauma associated with his work and repetitive activities but similarly did not provide
any medical rationale to support his conclusion. As previously stated a conclusion without
supporting medical rationale explaining how the condition is causally related to the identified
employment factors is insufficient to establish that the two are related. Both Dr. Uhland and
Dr. O’Brien opined that the cumulative trauma of appellant’s work resulted in his conditions,
however, neither explained what appellant was actually physically doing other than “working
with his hands” or explain how these activities caused his diagnosed conditions. Medical
opinions must indicate knowledge of actual employment factors and must contain the requisite
medical rationale to support a causal relationship between the alleged employment factor and the
diagnosed condition.
While appellant states that he believes his bilateral arm and hand conditions are related to
his employment the mere belief that the disease or condition was caused by employment factors
is not sufficient to establish a causal relationship between the two.9
The evidence of record is not sufficient to meet appellant’s burden of proof to establish
that his bilateral carpal tunnel syndrome, bilateral trigger thumb and radial tunnel syndrome are
causally related to his federal employment. The Board finds that appellant has submitted
insufficient medical evidence to establish that he sustained a condition in the performance of
duty.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his bilateral arm
and wrist conditions are causally related to his federal employment.

8

Beverly A. Spencer, 55 ECAB 501 (2004).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the March 4, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, MATERIEL
COMMAND, Anniston, AL, Employer
__________________________________________

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

Docket No. 17-1168
Issued: December 4, 2017

Case Submitted on the Record

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

JURISDICTION
On May 8, 2017 appellant, through counsel, filed a timely appeal from a November 9,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from June 8, 2016, the date of the most recent merit decision, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 7, 2011 appellant, then a 47-year-old production technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained stress and depression as a
result of being deployed to Kuwait the previous year. On August 26, 2011 OWCP accepted her
claim for adjustment disorder with mixed anxiety and depressed mood. Appellant received
intermittent compensation on the supplemental rolls from April 28 to December 2, 2011. On
May 2, 2013 OWCP accepted additional conditions of major depression and post-traumatic
stress syndrome.
Appellant’s treating licensed clinical psychologist, Dr. Holly Deemer, continued to
submit therapy progress notes. In a report dated March 19, 2015, she related that she continued
to treat appellant for anxiety and depression causally related to her accepted claim.
In an April 28, 2015 report, Dr. Gary K. Arthur, a Board-certified psychiatrist, reported
that appellant remained totally disabled from work. He concluded, based on “a reasonable
degree of medical certainty” that the depression and post-traumatic stress disorder (PTSD) “she
developed from working in Kuwait have been continuous and have become chronic.” (Emphasis
in the original.) Dr. Arthur recommended that appellant continue with her medications and
psychotherapy.
On May 11, 2015 OWCP referred appellant to Dr. Paul James O’Leary, a Board-certified
psychiatrist, for a second opinion evaluation as to whether she still had residuals of her accepted
conditions, and whether appellant was in need of continued supervised psychotherapy. It
notified appellant that if she obstructed the examination scheduled for June 12, 2015, her benefits
would be suspended in accordance with 5 U.S.C. § 8123(d).
By letter dated May 21, 2015, addressed to appellant’s last known address, she was
advised that OWCP had scheduled her examination with Dr. O’Leary for June 12, 2015 at
10:00 a.m.
By letter dated June 17, 2015, a case coordinator notified OWCP that appellant did not
appear for the scheduled examination with Dr. O’Leary.
In a letter dated June 19, 2015, OWCP advised appellant that it proposed to suspend her
compensation for failure to appear at the June 12, 2015 examination. It advised her that, if she
had good cause for her failure to attend, she should submit her reasons in writing within 14 days.
If appellant did not show good cause, her benefits would be suspended. She did not provide any
reasons for her failure to appear for the scheduled examination within the allotted time.
By decision dated July 6, 2015, OWCP suspended appellant’s compensation, pursuant to
5 U.S.C. § 8123(d), for failure to attend the June 12, 2015 examination. It noted that the
suspension would cease when appellant complied with the scheduled examination.
2

On July 13, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
By letter dated July 31, 2015, appellant explained that she missed her appointment with
Dr. O’Leary on June 12, 2015 because she was out of town. She expressed that she was willing
to attend a rescheduled appointment.
By letter dated August 21, 2015, addressed to appellant’s last known address, she was
advised that OWCP had rescheduled an examination with Dr. O’Leary on September 3, 2015 at
12:00 p.m. Appellant attended this appointment.
In a report dated September 7, 2015, Dr. O’Leary reported findings from his examination
of appellant on September 3, 2015. He opined that appellant’s psychological issues were not job
related.
By letter dated September 11, 2015, OWCP notified appellant that her medical benefits
had been reinstated because it had received the medical report from her September 3, 2015
appointment with Dr. O’Leary.
By letter dated June 1, 2016, OWCP scheduled an impartial medical examination to
resolve a conflict in the medical evidence between appellant’s treating physician, Dr. Arthur, and
Dr. O’Leary, the second opinion specialist. Accordingly, it referred appellant to Dr. Dwight A.
Owens, a Board-certified psychiatrist, to serve as the impartial medical examiner.
By decision dated June 8, 2016, a hearing representative found that OWCP correctly
suspended appellant’s medical benefits for refusing to submit to an examination for the period
July 6 through 15, 2015. She found that appellant’s stated reason for missing the appointment,
that she was out of town, was not a justifiable reason. The explanation for missing the
appointment was not received until July 31, 2015, well after the June 12, 2015 appointment and
appellant attended the rescheduled appointment on September 2, 2015.
In a report dated July 7, 2016, Dr. Owens found that there was causal relationship
between appellant’s initial injury and the current phenomenology of her mental illness, which
had not yet resolved.
He noted that she was in need of continuous supervised
psychopharmacology.
By letter received on October 21, 2016, appellant, through counsel, requested
reconsideration of the June 8, 2016 decision. With the request, counsel attached the July 7, 2016
referee report of Dr. Owens. He argued that that the June 8, 2016 decision should be vacated.
By decision dated November 9, 2016, OWCP denied appellant’s request for
reconsideration. It found that the July 7, 2016 report of Dr. Owens was not relevant to the issue
of whether appellant had a valid reason for not attending the June 12, 2015 appointment with
Dr. O’Leary.

3

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of its regulations provides
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.4
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
With the request for reconsideration, received October 21, 2016, appellant submitted a
referee medical report from Dr. Owens dated July 7, 2016. In this report, Dr. Owens opined that
there was a continued relationship between appellant’s initial injury and the current
phenomenology of her mental illness, which had not yet resolved. He concluded that she was in
need of continuous supervised psychopharmacology.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, or advance a new and relevant legal argument not previously considered. Thus, she is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The underlying issue is whether appellant supplied a valid reason for missing a second
opinion examination appointment on June 12, 2015.5 A claimant may be entitled to a merit
review by submitting relevant and pertinent new evidence relating to the underlying issue, but
appellant did not submit any such evidence in this claim. Counsel argued that the July 7, 2016
report of Dr. Owens constituted evidence that should suffice to reverse the sanctions for not
attending the June 12, 2015 appointment. However, the July 7, 2016 report does not contain any
stated reason for missing the June 12, 2015 appointment. Dr. Owens, instead, opined on the
residuals of appellant’s accepted injuries and her need for continued treatment. As such, the
July 7, 2016 report was irrelevant to the underlying issue of missing a scheduled appointment
and the resulting sanction.6 Appellant did not meet any of the requirements to warrant
reconsideration of her claim.
3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

The Board has held that the submission of evidence or argument which does not address the particular issue
involved in the case does not constitute a basis for reopening a case. A.M., Docket No. 16-1875 (issued August 23,
2017); Edward Matthew Diekamper, 31 ECAB 224 (1979).
6

Id.

4

The Board accordingly finds that, pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2016 is affirmed.
Issued: December 4, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
GARY AREA VETERANS CENTER,
Crown Point, IN, Employer
__________________________________________

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

Docket No. 19-1812
Issued: April 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 28, 2019 appellant, through counsel, filed a timely appeal from a May 28, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 17, 2018 employment incident.

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.

FACTUAL HISTORY
On May 2, 2018 appellant, then a 51-year-old administrator, filed a traumatic injury claim
(Form CA-1) alleging that on April 17, 2018 she suffered injuries to her right hand, wrist, ankle ,
and left knee when she slipped and fell in an icy area of the parking lot. She did not stop work.
In an April 17, 2018 diagnostic report, Dr. Antonella Lostumbo, a Board-certified
radiologist, performed an x-ray of appellant’s right ankle and found no evidence of a recent fracture
or dislocation. In a separate diagnostic report of even date, she performed an x-ray of appellant’s
right wrist and found mild degenerative disease with no recent fracture or dislocation.
In an April 30, 2018 medical note, Beverly Jordan, a registered nurse, examined appellant
and documented pain in appellant’s right foot and ankle.
In a partially redacted medical report of even date, Dr. Fida Bachour, Board-certified in
internal medicine, noted that appellant slipped on ice at work on April 17, 2018 and injured her
left knee and her right wrist and hand. She documented slight swelling and pain in appellant’s left
knee, as well as pain in her right hand. Appellant informed Dr. Bachour that she took three days
off from work and that she did not want therapy or extra pain medication to treat her injuries.
In a June 6, 2018 progress note, Dr. Anand Shah, Board-certified in family medicine,
indicated that appellant presented with swelling and pain in her left knee, as well as pain in her
right foot, ankle, wrist, and hand after slipping at work on April 17, 2018. He diagnosed chronic
pain of the left knee and right ankle, as well as right wrist pain and referred her to physical therapy.
In a development letter dated August 2, 2018, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
provided a factual questionnaire inquiring about the circumstances surrounding appellant’s
claimed injury for her completion and requested that she submit a narrative medical report from
her physician, which contained a detailed description of findings and diagnoses, explaining how
the reported incident caused or aggravated her medical condition. It afforded her 30 days to
respond. In a separate development letter of even date, OWCP requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the ownership of the
parking lot in which appellant was injured. No additional evidence was received.
By decision dated October 26, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis in connection
with her injury. It concluded, therefore, that the requirements had not been met to establish an
injury as defined under FECA.
On November 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the hearing held on March 11, 2019, appellant testified that she was seen at the
employing establishment facility on the date of her injury and that she was diagnosed with sprains
of her left knee and right ankle. The hearing representative explained that appellant would need a
narrative report from appellant’s treating physician providing this diagnosis with an explanation
2

of how her injury was causally related to her employment incident. He held the case record open
for 30 days for the submission of additional evidence.
In a March 29, 2019 progress note, Dr. Bachour reported that appellant presented with a
migraine headache. She also documented that, after four to five months and completion of physical
therapy, appellant experienced no residual pain in her right ankle, right wrist, and left knee.
By decision dated May 28, 2019, OWCP’s hearing representative affirmed the October 26,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 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.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant. 9

3

Id.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

M.S., Docket No. 19-1096 (issued November 12, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

R.S., Docket No. 19-1484 (issued January 13, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted April 17, 2018 employment incident.
In medical evidence dated April 30, 2018 and March 29, 2019, Dr. Bachour reported slight
swelling and pain in appellant’s left knee, as well as pain in her right wrist and hand after slipping
on ice at work on April 17, 2018. She did not, however, provide a specific diagnosis of an injury
or medical condition. The Board has held that a medical report lacking a firm diagnosis and a
rationalized medical opinion regarding causal relationship is of no probative value. 10 Moreover,
under FECA, the assessment of pain is not considered a diagnosis, as pain merely refers to a
symptom of an underlying condition. 11 As such, Dr. Bachour’s medical evidence is insufficient to
meet appellant’s burden of proof.
Similarly, Dr. Anand’s June 6, 2018 progress note diagnosed appellant with chronic pain
of the left knee and right ankle, as well as right wrist pain. As stated previously, the assessment
of pain is not considered a diagnosis, as pain merely refers to a symptom of an underlying
condition.12 Therefore, Dr. Anand’s progress note is also insufficient to meet appellant’s burden
of proof.
Appellant also provided April 17, 2018 diagnostic reports from Dr. Lostumbo, in which
she provided that x-rays of appellant’s right ankle and wrist found no evidence of a recent fracture
or dislocation, but noted mild degenerative disease of the right hand/wrist which was not
determined to be associated with the alleged employment incident. Diagnostic studies lack
probative value as to the issue of causal relationship as they do not address whether the
employment incident caused any of the diagnosed conditions. 13
The remaining medical evidence consists of an April 30, 2018 medical note from a nurse,
Mr. Jordan. However, the Board has held that certain healthcare providers such as nurses,
physician assistants, physical therapists, and social workers are not considered physicians as
defined under FECA. 14 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits. 15

10

P.C., Docket No. 18-0167 (issued May 7, 2019).

11

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
not a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No.
08-1102 (issued October 10, 2008).
12

Id.

13

See J.S., Docket No. 17-1039 (issued October 6, 2017).

14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

15

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).

4

The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to her April 17, 2018
employment incident.16 Appellant, therefore, has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted April 17, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 16, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

See T.J., Docket No. 18-1500 (issued May 1, 2019); see D.S., Docket No. 18-0061 (issued May 29, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 14-201
Issued: May 8, 2014

Case Submitted on the Record

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

JURISDICTION
On November 5, 2013 appellant filed a timely appeal from an October 18, 2013 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 recurrence of
disability beginning August 14, 2013 causally related to his accepted right shoulder and back
conditions.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the October 18, 2013 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On December 3, 2012 appellant, then a 48-year-old transportation security officer, filed
an occupational disease claim alleging that he sustained injuries to his lower back and right
shoulder and arm as a result of repetitively screening and lifting heavy bags.3 He first became
aware of his condition and realized it resulted from his employment on November 23, 2012.
Appellant worked modified duty. OWCP accepted his claim for sprains of the back, right
shoulder and upper arm.
On April 19, 2013 appellant underwent right shoulder surgery. He stopped work and
received wage-loss compensation.
Appellant returned to full-time modified duty on
May 27, 2013.
In July 2 and 15, 2013 reports, Dr. Norman Kane, a Board-certified orthopedic surgeon,
related that appellant continued to have right shoulder pain and discomfort and chronic back
problems dating back to his November 2012 employment injury. He noted that it had been two
months since appellant underwent right shoulder surgery. Upon examination, Dr. Kane observed
range of motion of the shoulder at 170 degrees of flexion and abduction. He noted that
appellant’s spinal flexibility was such that his fingertips reached halfway down his tibias with his
knees extended. Dr. Kane reported that an x-ray of the lumbosacral spine demonstrated some
narrowing of the intervertebral disc spaces of lower lumbar vertebrae and no evidence of
spondylolisthesis.
He diagnosed status post right shoulder arthroscopic subacromial
decompression and lower back pain as a result of a November 22, 2012 industrial injury.
Dr. Kane stated that appellant’s symptoms had worsened and noted that he was having radicular
symptoms. He recommended physical therapy and a magnetic resonance imaging scan of
appellant’s lumbosacral spine to rule out a herniated nucleus pulposus. Dr. Kane noted that
appellant was working light duty and could continue working with a 10-pound lifting limitation.
In an August 13, 2013 disability note, Dr. Kane indicated that appellant was temporarily
partially disabled from August 13 to September 3, 2013. He limited appellant to a five-hour
workday with restrictions of lifting up to 10 pounds and no working at or above the shoulders.
On August 28, 2013 appellant filed a claim for disability compensation for reduced hours
beginning August 14 to 28, 2013. Attached CA-7a forms demonstrated that he began working
five hours a day and claiming three hours of wage-loss compensation beginning
August 14, 2013.
By letter dated September 10, 2013, OWCP advised appellant that he was claiming a
recurrence of disability and that he had submitted insufficient evidence to support his claim. It
requested additional evidence to establish that he sustained a recurrence of disability beginning
August 14, 2013.
In September 3 and 24, 2013 disability notes, Dr. Kane indicated that appellant was
temporarily partially disabled from September 3 to October 7, 2013. He restricted appellant to
3

The record reveals that he previously filed an occupational disease claim on June 13, 2006 (File No. xxxxxx858)
and a traumatic injury on March 27, 2008. (File No. xxxxxx872).

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no reaching at or above the shoulders, gripping, grasping, pushing or pulling. Dr. Kane also
limited appellant to lifting up to 10 pounds and working five hours per day.
In a September 15, 2013 statement, appellant explained that on August 13, 2013 his work
restrictions changed and Dr. Kane limited him to a five-hour workday.
Appellant submitted various physical therapy treatment notes beginning August 3, 2013.
In a September 24, 2013 questionnaire form, appellant explained that when he went to the
physician on August 13, 2013 he complained about swollen ankles and lower back tenderness
and soreness. He stated that since returning to work he was on light duty and that his back was
very tight and sore from prolonged standing. Appellant believed that his disability was due to
his original injury because he continued to have lower back pain and swollen ankles when
standing throughout an eight-hour shift. He noted that since working five-hour shifts his swollen
ankles had decreased and his lower back flared up only periodically.
By decision dated October 18, 2013, OWCP denied appellant’s recurrence claim finding
insufficient medical evidence to establish that he was unable to work full time beginning
August 14, 2013 as a result of his accepted back and right shoulder conditions.
LEGAL PRECEDENT
The term disability as used in FECA means the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden to establish by the weight of the reliable, probative and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, the employee must show either a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.6 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
that the disabling condition is causally related to the employment injury. The medical evidence

4

20 C.F.R. § 10.5(x).

5

Id.

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).

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must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to duty, the attending physician should describe the
duties which the employee cannot perform and the demonstrated objective medical findings that
form the basis for the renewed disability for work.10
ANALYSIS
OWCP accepted appellant’s December 3, 2012 occupational disease claim for a back,
right shoulder and upper arm sprain. On April 19, 2013 appellant underwent authorized right
shoulder surgery and stopped work. He returned to full-time modified duty on May 27, 2013.
On August 14, 2013 appellant stopped working full time and began working five hours per day.
He subsequently claimed wage-loss compensation for these reduced hours beginning
August 14, 2013. Appellant explained that his work restrictions changed and his physician
limited him to work five hours per day. By decision dated October 18, 2013, OWCP denied that
he suffered a recurrence of disability beginning August 14, 2013 when he stopped working fulltime modified duty. The Board finds that appellant did not meet his burden of proof to establish
a recurrence of disability and was unable to work full time beginning August 14, 2013.
In support of his claim, appellant provided several reports from Dr. Kane. In July 2
and 15, 2013 reports, Dr. Kane related appellant’s complaints of continued right shoulder pain,
discomfort and chronic back problems. He noted that appellant underwent right shoulder surgery
two months ago and provided findings on examination. Dr. Kane diagnosed status post right
shoulder arthroscopic subacromial decompression and lower back pain. He stated that
appellant’s symptoms had worsened but recommended that he continue working light duty with
a 10-pound lifting limitation. The Board notes that while Dr. Kane opined that appellant’s
condition had worsened he did not explain whether appellant’s conditions had worsened to the
extent that required a change in his work restrictions and his ability to perform his modified
duties full time.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

8

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

9

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

10

See supra note 7 at Recurrences, Chapter 2.1500.5 (June 2013).

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In disability notes dated from August 13 to September 24, 2013, Dr. Kane indicated that
appellant was partially disabled beginning August 13, 2013 and limited him to work five hours
per day. Although he addressed the period of disability commencing August 13, 2013 he did not
address any particular examination findings that established the need for his order for a reduction
in his work hours. Dr. Kane did not provide any findings or rationale to support any objective
worsening of appellant’s accepted conditions and what specific duties of the full-time, modifiedduty position he could no longer perform. Medical evidence that states a conclusion but does not
offer any rationalized medical explanation is of limited probative value.11 Accordingly,
Dr. Kane’s reports are insufficient to establish that appellant’s claimed disability beginning
August 14, 2013 is causally related to his accepted conditions.12
On appeal, appellant related that his injuries continued and that his modified schedule
was decided by his orthopedic surgeon. As previously noted, however, Dr. Kane’s reports are
insufficient to establish that appellant was no longer able to work full time, modified duty as it
did not contain any findings or medical rationale to support his recurrence of disability for work.
Appellant did not submit any other medical evidence supporting a worsening of his accepted
condition, which substantiated work-related disability during the claimed period. He did not
meet his burden of proof in establishing his claim for a recurrence of disability. Any medical
opinion evidence appellant may submit to support his claim for compensation benefits should
reflect a correct history and should offer a medically sound explanation by the physician of how
the specific employment duties of a transportation security officer physiologically caused or
aggravated a recurrence of his accepted back and right shoulder conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning August 14, 2013 causally related to his accepted employment conditions.

11

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

12

See P.T., Docket No. 12-1439 (issued January 23, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the October 18, 2013 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: May 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, DALLAS
PERFORMANCE CLUSTER, Coppell, TX,
Employer
__________________________________________
Appearances:
Tim Egbuchunam, for the appellant
Office of Solicitor, for the Director

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Docket No. 12-711
Issued: November 26, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On February 13, 2012 appellant timely filed an application for review from the
November 18, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board assigned Docket No. 12-711.
In July 2005, OWCP accepted that appellant sustained bilateral carpal tunnel syndrome
and bilateral ulnar nerve lesions. On February 8, 2007, Dr. Robert Holladay, a Board-certified
orthopedic surgeon and an impartial medical specialist, advised that appellant could return to
work with restrictions.
On August 27, 2007 the employing establishment offered appellant a full-time job as a
dock worker within certain restrictions. Appellant accepted the job and returned to work on
September 4, 2007. In a November 15, 2007 decision, OWCP determined that appellant’s actual
wages as a dock worker fairly and reasonably represented his wage-earning capacity.
In November 2010, appellant submitted a Form CA-7 claiming wage-loss compensation
beginning October 24, 2010 and requested modification of OWCP’s November 15, 2007 wageearning capacity determination. The employing establishment had withdrawn appellant’s job
effective October 24, 2010 under the National Reassessment Process (NRP).
In a January 5, 2011 decision, OWCP denied modification of its November 15, 2007
wage-earning capacity determination.

Appellant submitted additional medical evidence, which indicated that his work-related
upper extremity condition had worsened. In a June 14, 2011 decision, OWCP affirmed its
January 5, 2011 decision. Appellant requested reconsideration and submitted chart notes from
the New Help Clinic. In a November 18, 2011 decision, OWCP affirmed its June 4, 2011
decision. It stated that the medical evidence did not show that the work-related injury had
worsened, but it did not address particular medical documents submitted by appellant.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.1 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.2 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.3 Modification of a
standing wage-earning capacity determination is not warranted unless there is a material change
in the nature and extent of the injury-related condition, the employee has been retrained or
otherwise vocationally rehabilitated, or the original determination was erroneous.4 The burden
of proof is on the party attempting to show a modification of the wage-earning capacity
determination.5
FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are
withdrawn pursuant to the NRP. If, as in the present case, a formal wage-earning capacity
decision has been issued, OWCP must develop the evidence to determine whether a modification
of that decision is appropriate.6
OWCP analyzed this case under the customary criteria for modifying a loss of wageearning capacity determination. It did not acknowledge FECA Bulletin No. 09-05 or fully follow
the procedures outlined therein for claims, such as this, in which limited-duty positions are
withdrawn pursuant to NRP.7 When a loss of wage-earning capacity decision has been issued,
FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether a
modification of the decision is appropriate.8 It requires OWCP to review whether a current
medical report supports work-related disability and establishes that the current need for limited
duty or medical treatment is a result of injury-related residuals, and to further develop the

1

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
2

K.R., supra note 1; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
3

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

4

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

5

Selden H. Swartz, 55 ECAB 272, 278 (2004).

6

FECA Bulletin No. 09-05 (issued August 18, 2009).

7

See M.A., Docket No. 12-316 (issued July 24, 2012).

8

FECA Bulletin No. 09-05, supra note 6.

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evidence from both the claimant and the employing establishment if the case lacks current
medical evidence.9
The Bulletin states that OWCP, in an effort to proactively manage these types of cases,
may undertake further nonmedical development, such as requiring that the employing
establishment address in writing whether the position on which the wage-earning capacity
determination was based was a bona fide position at the time of the rating and to direct the
employing establishment to review its files for contemporaneous evidence concerning the
position.10
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the November 18, 2011 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning
October 24, 2010.11
IT IS HEREBY ORDERED THAT the November 18, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: November 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

Id. at §§ I.A.1-2.

10

Id. at § I.A.3.

11

See M.A., supra note 7; M.E., Docket No. 11-1416 (issued May 17, 2012).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrison, AK, Employer
__________________________________________

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

Docket No. 13-763
Issued: July 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 13, 2013 appellant filed a timely appeal of a January 14, 2013 merit
decision of the Office of Workers’ Compensation (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant sustained an injury to her left shoulder causally related to
factors of her federal employment.
FACTUAL HISTORY
On November 28, 2011 appellant, then a 50-year-old clerk, filed an occupational disease
claim alleging that she suffered pain in her shoulders and into her chest/collarbone, primarily on
her left side. In accompanying statement, she noted that over the last several years she has had
1

5 U.S.C. § 8101 et seq.

pain in her left shoulder at the end of her shift, but it always felt better the next day. Appellant
noted that in September, the pain started going from her shoulder into her chest and collar bone.
She described her work duties, indicating that she pushes equipment, loads the belt, throws mail
and pulls mail across the machine and sleeving trays and that these activities put strain on her
arms and shoulders.
By decision dated February 21, 2012, OWCP denied appellant’s claim because she did
not submit any medical evidence containing a medical diagnosis in connection with the accepted
employment activities.
On October 9, 2012 appellant requested reconsideration. In support thereof, she
submitted several medical reports. In a February 14, 2012 report, Dr. Terry J. Sites, a Boardcertified orthopedic surgeon, indicated that appellant worked for the employing establishment in
reaching-type activities. He noted that there had been no specific injury or event, but repetitive
trauma. Dr. Sites assessed appellant with left shoulder rotator cuff tendinopathy with
impingement, possible tear. In a February 20, 2012 magnetic resonance imaging (MRI) scan
study, Dr. Tommy Hinton, a Board-certified radiologist, listed his impressions as:
(1) supraspinatus tendinosis; (2) acromioclavicular joint degenerative changes which could be a
cause of impingement-type syndromes; and (3) degenerative cystic changes in the humeral head.
In a February 22, 2012 report, Dr. Mark W. Powell, a Board-certified orthopedic surgeon,
assessed appellant with left shoulder impingement. He noted that he reviewed the MRI scan
results with appellant and that he gave her a cortisone injection in her left shoulder.
In a May 10, 2012 report, Dr. Tarik Sidani, an osteopath, noted that appellant complained
of pain in her left shoulder which she attributed to repetitive lifting activities at the employing
establishment. He assessed appellant with impingement and rotator cuff tendinitis of the left
shoulder. Dr. Sidani recommended an injection and continued physical therapy. In a
September 6, 2012 report, he indicated that appellant had continued left shoulder pain, and has
had no relief with formal physical therapy, anti-inflammatories and injections. Dr. Sidani
recommended a diagnostic arthroscopy, subacromial decompression and possible rotator cuff
repair. In an operative report, he noted that on September 28, 2012 appellant underwent a left
shoulder arthroscopy with arthroscopic subacromial decompression and acromiplasty and miniopen rotator cuff repair. He listed the postoperative diagnosis as left shoulder impingement
syndrome and high grade partial rotator cuff tear (90 percent). An October 3, 2012 report by
Dr. Sidani indicated that appellant was five days after left shoulder arthroscopy with rotator cuff
repair. He recommended physical therapy. Dr. Sidani reported on October 10, 2012 that surgery
revealed a rotator cuff tear and bursitis which she believed was caused by her work.
By decision dated January 14, 2013, OWCP conducted a merit review but indicated that,
although appellant had now established fact of injury, the claim remained denied as appellant
had not established a causal relation.

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LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA4 and that he or
she filed her claim within the applicable time limitation.5 The employee must also establish that
he or she sustained an injury in the performance of duty as alleged and that his or her disability
for work, if any, was causally related to the employment injury.6 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.7
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.8
Causal relationship is a medical issue9 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty,11
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.12

2

5 U.S.C. §§ 8101-8193.

3

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

4

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

6

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

7

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

8

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

9

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

10

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

11

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

12

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

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury to her left shoulder causally related to the duties of her federal employment.
Although appellant established employment factors and a medical diagnosis, she did not submit
rationalized medical evidence showing the medical condition was causally related to her federal
employment. Neither Dr. Powell nor Dr. Hinton discussed appellant’s employment at the
employing establishment. Dr. Sites diagnosed left shoulder rotator cuff tendinopathy with
impingement and possible tear and indicated that appellant worked in the employing
establishment in reaching-type activities, but he did not provide a rationalized medical opinion
linking these activities to her diagnosed condition. Dr. Sidani noted in his several reports that
appellant attributed her condition to repetitive work at the employing establishment, but he did
not make any independent conclusion as to the cause of her shoulder condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was caused by her employment is sufficient to
establish causal relationship.13 As appellant did not submit a rationalized medical opinion
establishing a causal relationship between her accepted employment activities and a diagnosed
medical condition, OWCP properly denied her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury to her left
shoulder causally related to factors of her federal employment.

13

Walter D. Morehead, 31 ECAB 188 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2013 is affirmed.
Issued: July 2, 2013
Washington, DC

Colleen Duffy Kiko, 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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