United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

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February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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

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).

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To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f 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 identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

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

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

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appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. 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 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r 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 right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Huron, MI, Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 09-112
Issued: July 16, 2009

Case Submitted on the Record

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

JURISDICTION
On October 14, 2008 appellant, through his representative, filed a timely appeal of the
Office of Workers’ Compensation Programs’ decisions, dated October 31, 2007 and July 18,
2008 denying his claim of avascular necrosis. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his avascular
necrosis of both hips is causally related to his September 27, 2004 employment injuries.
Appellant, through his representative, contends that the Office improperly denied his
claim for avascular necrosis as an x-ray taken four months prior to his injury did not reveal any
avascular necrosis and that evidence that his medications would not cause avascular necrosis was
not considered.1

1

Appellant also contends that he was not given proper notification of his appeal rights.

FACTUAL HISTORY
On September 27, 2004 appellant sustained injury to his left knee when a moving flats
tray caught his leg, causing him to lose his balance and fall to the floor.2 By letter dated
March 15, 2005, the Office accepted his claim for left knee strain and left knee contusion.
In an April 12, 2005 report, Dr. Gerald J. Jerry, a Board-certified orthopedic surgeon,
assessed appellant with pain in the hip joint or involving pelvic region and thigh and
derangement of posterior horn of medial meniscus. He diagnosed avascular necrosis of the left
hip and possible starting of avascular necrosis in the right hip. Dr. Jerry indicated that he would
proceed with a magnetic resonance imaging (MRI) scan of both hips for confirmation of
avascular necrosis. An MRI scan taken on April 20, 2005 revealed findings compatible with
bilateral avascular necrosis of the hips, left greater than right.
On April 29, 2005 Dr. Jerry noted that appellant fell on September 27, 2004 while at
work which aggravated his condition of rheumatoid arthritis. He continued:
“The pain that [appellant] felt in his right knee was actually referred from his hip.
He had injury to both hips and the right knee at the time of the fall. This type of
trauma will cause avascular necrosis of bilateral hips.”
On May 6, 2005 Dr. Jerry performed a right hip core decompression with biopsy and left
hip total hip arthoplasty reconstruction. The diagnostic radiology report from this date found
mild degenerative changes seen in right hip with no evidence of fracture. The left hip
demonstrated changes of total hip arthoplasty.
In a June 4, 2005 report, Dr. Jerry reiterated the diagnosis of avascular necrosis and that
the condition was preexisting; however, the work-related fall on September 27, 2004 aggravated
appellant’s condition to the point of needing surgical correction. Dr. Jerry stated, “We feel that
[appellant’s] weight which is in excess of 250 [pounds] and carrying weight in excess of 40 to 50
[pounds] with mail, caused significant trauma to the area of the hips which since then the hips
have become progressively symptomatic for him.” He noted that appellant had rheumatoid
arthritis which increased the risk to the area of the hips with decrease in blood circulation.
Dr. Jerry continued appellant’s weight bearing restrictions after the surgical procedure.
On July 22, 2005 the Office referred appellant to Dr. Bruce D. Abrams, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated August 8, 2005, Dr. Abrams
diagnosed left knee contusion, status post total left hip arthoplasty and status post right hip core
decompression. He noted that the work-related condition was the contusion to the left knee and
the nonwork-related condition was the preexisting hip condition. Dr. Abrams opined that the
knee contusion did not aggravate or precipitate appellant’s secondary diagnosis of hip disease.
He indicated that he would place appellant on temporary restrictions which were not related to
the September 2004 injury.

2

Appellant was initially treated by Daniel Dillingham, a physician’s assistant, for a left knee strain and mild
contusion. He was returned to modified duty as of September 30, 2004.

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The Office found a conflict between Dr. Jerry, appellant’s physician, and Dr. Abrams, the
second opinion physician, with regard to the following issues: (1) whether appellant’s right hip
condition was preexisting or not and how it was affected, if at all, by the accepted work incident;
(2) whether claimant’s right hip surgery, performed on May 7, 2005, was warranted and related
to the work injury that occurred on September 27, 2004; and (3) whether appellant’s requested
left knee arthroscopy was medically warranted due to the work injury of September 27, 2004.
By letter dated September 8, 2005, the Office referred appellant to Dr. Joseph Salama, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a September 29,
2005 report, Dr. Salama listed his diagnostic impressions as: avascular necrosis, right and left
femoral head; post left total hip replacement and post right core decompression; and
postarthroscopic meniscectomy, left knee. He opined that appellant’s avascular necrosis was a
preexisting condition related to his previous medical history. Dr. Salama noted that appellant’s
medical history was significant for rheumatoid arthritis, lupus and Sjörgen’s disease, for which
he was using immunosuppressive agents, which can precipitate avascular necrosis. Upon review
of appellant’s medical records, the left knee injury was relatively minor, noting that appellant
was released to full duty within days of the incident. Dr. Salama indicated that appellant’s right
hip condition was preexisting and neither caused nor aggravated by the September 27, 2004
injury. He noted that appellant underwent a left knee meniscectomy which was necessitated by
the accepted injury. The pathology sustained as a result of the September 17, 2004 incident had
been surgically repaired. Dr. Salama advised that appellant’s predominant conditions were
chronic rheumatoid arthritis and avascular necrosis. He noted that these conditions were of a
chronic, preexisting nature and have no relationship to the September 27, 2004 injury, but
followed their normal progression.
By decision dated April 21, 2006, the Office found that appellant’s right hip
decompression and left total hip arthoplasty were not work related. It denied appellant’s claim
for wage loss due to these surgeries for the period April 16 through October 11, 2005.
On May 16, 2006 appellant requested an oral hearing.
In a February 19, 2007 medical note, Dr. Paul T. Sommerville, an osteopath, noted that
appellant has psoriatic arthritis which was treated with Methotrexate from October 2004 to
March 2005. He did not believe this medicine for this short period of time would cause
appellant’s avascular necrosis or cause his bones to become brittle. Dr. Sommerville also noted
that this medicine was not started until after he suffered the trauma to his bilateral hips and left
knee.
At a hearing held on February 21, 2007, appellant advised that he retired
November 30, 2005. He noted that, on September 27, 2004, he grabbed a tray of mail and when
he turned, his leg caught another tray and he fell on his left knee and “everything went numb.”
Appellant discussed his medical treatment and subsequent work history. He indicated that
Dr. Abrams never looked at him but just sat at his desk and asked questions. Appellant noted
that he had psoriatic arthritis for which he took medication. He also discussed his appointment
with Dr. Salama. Appellant’s wife testified with regard to their finances and discussed her
husband’s physical limitations.

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By decision dated May 9, 2007, the hearing representative found that appellant’s right hip
condition was not causally related to his work injury. However, she found that it was necessary
to seek clarification from Dr. Salama concerning appellant’s left hip.
In a June 7, 2007 addendum, Dr. Salama opined that the September 27, 2004 injury did
not accelerate or aggravate appellant’s preexisting avascular necrosis. He noted that appellant
had previous avascular necrosis and the natural progression of the disease was with collapse over
the femoral head and eventually arthritic changes in the hip requiring hip arthoplasty.
Dr. Salama also noted that the cord decompression on the right side was not related to the
September 27, 2004 work injury. This procedure was undertaken to promote same vascularity to
the femoral head to prevent collapse on the right side.
In a decision dated September 6, 2007, the Office found that the September 27, 2004
injury did not accelerate or otherwise aggravate his preexisting left hip avascular necrosis. On
the same date, it accepted torn cartilage of the left knee.
On October 16, 2007 appellant, through his representative, requested reconsideration. In
an August 20, 2007 report, Dr. Rafia Khalil, a Board-certified internist with a subspecialty in
rheumatology and a colleague of Dr. Jerry, noted that appellant had an undifferentiated
connective tissue disease dating to the 1980’s. He did not believe the diagnosis of preexisting
avascular necrosis could be entertained. Dr. Khalil noted that Methotrexate was prescribed for a
short time for psoriatic arthritis. Dr. Khalil stated that appellant’s medications were not known
to cause vascular necrosis. He opined that appellant’s fall was the most likely cause for his
osteonecrosis in the left hip. Dr. Khalil noted that the right hip did show mild avascular necrosis
without collapse and was probably also related to the injury, noting that the disease was not as
severe in his right hip because of the lack of direct impact on the right side in the
September 2004 fall. He noted that there was no definite abnormality to appellant’s hip prior to
the injury, and that, if it were not for the fall, appellant probably would not have needed surgical
treatment.
By decision dated October 31, 2007, the Office denied modification, finding that the
report of Dr. Khalil was speculative on causal relationship.
On March 17, 2008 appellant again requested reconsideration and he submitted evidence
already of record, medical bills and correspondence from his health insurance company.
Appellant’s wife, a nurse, addressed the circumstances of his injury, the medical evidence, and
issues arising in the processing of his claim. In a January 28, 2008 letter, Dr. Jerry stated:
“[Appellant] had not had pain or irritation to either his right or left [hip] prior to
his fall, which was sustained at work on September 27, 2004. After the fall, on
said date, [he] started his complaints of pain to both the knee and to the hips.
Radiographic evidence, which supports this claim, is an x-ray, which was taken
on [June 4, 2004] with the date noted being before [appellant’s] fall at work. This
was reviewed and showed to have absolutely no findings of avascular necrosis to
the area of the left hip. The x-rays showed to have well preserved joint space, no
arthritic changes and no findings of any fractures or bony lesions. With
[appellant’s] history of having no complaints prior to his injury, along with the

4

most recent evidence of left hip x-ray showing no findings of avascular necrosis,
it is an absolute fact that the injury sustained, which again was a fall at work,
caused a traumatic injury to the area of the left hip, which caused his avascular
necrosis. Which, to reiterate, is proved by [his] history of no pain and again by
the previous x-ray which was taken prior to his fall.”
By decision dated July 18, 2008, the Office denied modification of the October 31, 2007
decision.
LEGAL PRECEDENT
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.3 Causal relationship is a
medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence 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 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
established incident or factor of employment.4
Section 8123 of the Act 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. When 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.5
ANALYSIS
The Office accepted appellant’s claim for a left knee strain, left knee contusion and torn
cartilage in the left knee. It denied appellant’s claim for avascular necrosis of both hips.
Dr. Jerry advised that the avascular necrosis was causally related to the traumatic injury of
September 27, 2004. He noted that appellant’s weight of over 250 pounds, in combination with
the weight of the mail he was lifting, caused significant trauma to the areas of the hips when he
fell. Dr. Abrams, a second opinion physician, disagreed and opined that appellant’s left knee
injury did not aggravate or precipitate his hip disease. In order to resolve the conflict between

3

Katherine J. Friday, 47 ECAB 591, 594 (1996).

4

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

5

5 U.S.C. § 8123.

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these two physicians, the Office referred appellant to Dr. Salama for an impartial medical
examination.
Dr. Salama examined appellant on September 25, 2005 and provided a thorough review
of the accepted injury and medical treatment. He noted the diagnosis of rheumatoid arthritis with
a history of Sjögren’s disease. Dr. Salama noted that the medical evidence contemporaneous to
the accepted injury did not reveal complaints relative to the hips, back or ankle. He opined that
appellant’s September 27, 2004 employment injury was relatively minor and did not accelerate
or aggravate appellant’s preexisting avascular necrosis. Dr. Salama noted that the avascular
necrosis was a chronic condition and that appellant’s present condition was just following the
natural progression of the disease. As his opinion is well rationalized, it is entitled to special
weight.6
The medical evidence submitted by appellant following the denial of his claim is
insufficient to overcome the report of Dr. Salama. Much of the evidence is not relevant to the
issue of causal relation, i.e., copies of prior evidence, financial records and letters from
appellant’s insurance company. The reports of Dr. Jerry and Dr. Khalil were found insufficient
to overcome the weight given to the report of Dr. Salama. Dr. Jerry reiterated his opinion on
causal relationship which gave rise to the conflict in medical opinion.7 The opinion of Dr. Khalil
was found to be speculative.8 Appellant argues that the x-ray taken four months before his fall
did not show avascular necrosis and that his condition was not diagnosed until nine months after
injury. This contention was not supported by Dr. Salama. Appellant also contends that the
claims examiner summarily dismissed medical evidence in support of his claim. Dr. Salama
stated that avascular necrosis is a progressive disease and the natural progression causes collapse
of the femoral head over time. The evidence from appellant’s physicians was considered by the
Office but found deficient. The well-rationalized opinion of the impartial medical examiner
found that appellant’s medications, specifically the immunosuppressive agents secondary to his
rheumatoid arthritis condition, can precipitate avascular necrosis. Accordingly, appellant has
failed to establish that he sustained a work-related aggravation of his avascular necrosis.
CONCLUSION
The Board finds that appellant has not established that his bilateral hip avascular necrosis
was caused by his accepted injury.

6

Id.

7

See John D. Jackson, 55 ECAB 465 (2004).

8

See Michael R. Shaffer, 55 ECAB 386 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 18, 2008 and October 31, 2007 are affirmed.
Issued: July 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
AGENCIES, Columbus, OH, Employer
__________________________________________
Appearances:
Ian Michael Overking, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0356
Issued: March 20, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 5, 2018 appellant, through counsel, filed a timely appeal from an October 29,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as Docket No. 19-0356.
In a March 14, 2018 preliminary notice, OWCP advised appellant of its determination that
he had received an overpayment of compensation in the amount of $41,001.66 because he had
received Social Security Administration (SSA) Federal Employees Retirement System (FERS)
age-related retirement benefits attributable to his federal service, as well as Federal Employees’
Compensation Act (FECA) benefits during the period November 1, 2006 through
October 14, 2017. OWCP found that appellant was without fault in the creation of the
overpayment. Appellant was provided an overpayment recovery questionnaire (OWCP-20) and
was informed of his appeal rights to address waiver of recovery of the overpayment.

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.

On April 2, 2018 appellant requested a telephone conference with OWCP regarding the
issues of fault and possible waiver of recovery of the overpayment.
OWCP and appellant’s then-counsel engaged in a series of pre-conference telephone calls
regarding the preliminary overpayment decision. In the last memorandum of telephone call to
appellant’s counsel, dated June 11, 2018, OWCP noted that it had informed counsel that it could
compromise the overpayment down to $9,569.20 and recover the overpayment at a rate of $80.00
every 28 days, so that the overpayment would be paid, rather than waived.
By decision dated June 26, 2018, OWCP granted waiver of recovery of the entire
overpayment. It found that the circumstances of the case warranted waiver of recovery because
the period necessary to repay the debt, with charges, would be 668.73 months, which was longer
than appellant’s life expectancy of 121.2 months.
On September 14, 2018 the employing establishment sent a detailed correspondences to
OWCP and requested that it review the June 26, 2018 waiver decision on its own motion. It argued
that OWCP had improperly granted waiver of the entire overpayment, because the procedure
manual did not allow for waiver of the overpayment principal.2
By decision dated October 29, 2018, OWCP found an overpayment of compensation had
been created in the amount of $41,001.66 for which appellant was not at fault. It denied waiver of
recovery of the overpayment based on appellant’s failure to establish that he required substantially
all of his income to meet ordinary and necessary living expenses. It further determined that it
would recover the overpayment by deducting $400.00 every 28 days from his continuing
compensation payments. OWCP noted that it had to reopen the decision to waive the debt based
upon concerns raised by the employing establishment.
The Board finds that this case is not in posture for decision. OWCP is required by statute
and regulation to make findings of fact and provide a statement of reasons.3 After OWCP granted
waiver of recovery of the overpayment on June 26, 2018, but prior to the October 29, 2018 final
overpayment decision, OWCP updated its procedures regarding overpayment and debt collection
in September 2018. In FECA Transmittal No. 18-044, OWCP explained that it had completely
overhauled the debt management processes, including identifying and calculating an overpayment,
making preliminary and final determinations, and liquidating the debt. The Board finds that
appellant was entitled to a decision which explained why and on what legal basis the June 26, 2018
decision waiving recovery of the overpayment was rescinded in the October 29, 2018 decision. .
The Board notes that the circumstances of this case reflect that appellant’s then-counsel
was informed during the telephone conference of June 11, 2018 that the overpayment could be
2

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4 (June 2009)
3

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides that its final decision shall contain findings of fact and
a statement of reasons. See also H.O., Docket No. 19-0198, Order Remanding Case (issued July 3, 2019).
4

See FECA Transmittal No. 18-04 (issued September 2018).

2

compromised. OWCP’s new procedures at Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Determinations in an Overpayment, Chapter 6.400.5(c)(4) (September 2018)
provide in part that a final overpayment decision shall provide a discussion, including … a
summary of any conference held and conclusions drawn from it; consideration of waiver of
recovery where the overpaid individual is found without fault; and, if the overpayment is
recoverable, an appropriate collection plan.
As OWCP failed to provide findings pursuant to its procedures or legal rationale explaining
the rescission of waiver of the overpayment, and has not explained why waiver of the overpayment
could not be granted pursuant to its new procedures, the Board finds that the case must be
remanded for a new preliminary determination which provides proper findings of fact and
conclusions of law and affords appellant due process rights to seek waiver of recovery of the
overpayment.
IT IS HEREBY ORDERED THAT October 29, 2018 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 20, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 12-1864
Issued: February 4, 2013

Case Submitted on the Record

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

JURISDICTION
On September 13, 2012 appellant, through her attorney, filed a timely appeal from the
June 8, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this denial.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In the prior appeal,2 the Board found that appellant, a mail carrier, did not meet her
burden to establish that she sustained a right knee injury in the performance of duty on
June 16, 2007. The Board offered two grounds. First, appellant did not establish that she
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. The history of injury she described on her December 5, 2007 claim form differed
materially from the history she provided her physician on June 18, 2007, only two days after the
alleged injury. Dr. Barry S. Ziring, the attending internist and an assistant professor of medicine,
did not mention a popping in appellant’s knee. He reported that appellant was walking when she
suddenly felt pain behind her right calf. Dr. Ziring’s findings included some tenderness on the
lateral aspect of the knee but no swelling or edema. He diagnosed a partial tear of the right calf
muscle and released appellant to return as needed.
OWCP accepted appellant’s claim for partial tear of the right gastrocnemius muscle,
resolved.
Second, the Board found that the medical opinion evidence was not sufficiently
rationalized to support the claimed right knee injury. The Board found that Dr. Ziring failed to
reconcile his opinion that appellant tore her right medial meniscus and fractured her medial
femoral condyle on June 16, 2007 with his initial treatment notes. The Board affirmed OWCP’s
December 10, 2009 decision denying appellant’s right knee claim. The facts of this case as set
forth in the Board’s prior decision are hereby incorporated by reference.
On February 9, 2012 OWCP received a January 13, 2012 report from Dr. Ziring to
appellant’s representative. Dr. Ziring indicated that he disagreed with the Board’s decision
“stating that her knee injury was not related to the popping sound that she heard or to an injury
sustained at work.” He stated that he lacked the expertise to interpret whether x-ray findings
supported a traumatic versus a degenerative origin of her injury.
On May 8, 2012 appellant’s representative requested reconsideration. He argued that, as
OWCP had received Dr. Ziring’s January 13, 2012 report within one year of the Board’s
decision, it was obligated to review the merits of her case.
In a June 8, 2012 decision, OWCP denied appellant’s reconsideration request. It found
that her request was untimely and failed to present clear evidence of error.
Appellant’s representative argues on appeal that OWCP abused its discretion in failing to
review Dr. Ziring’s January 13, 2012 report, which constituted new medical evidence that
appellant did suffer a knee injury on June 16, 2007.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
2

Docket No. 10-1299 (issued February 8, 2011).

2

“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought. OWCP will consider an untimely application only if the
application demonstrates clear evidence of error on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
The Board’s February 8, 2011 decision affirming the denial of appellant’s right knee
claim was the most recent merit decision in this case. Appellant had one-calendar year, or until
February 8, 2012, to deliver a reconsideration request to OWCP.7 Her May 8, 2012 request was
therefore untimely by 13 weeks.
The question for determination is whether appellant’s untimely request shows clear
evidence of error in OWCP’s denial of her right knee claim. Appellant argued that OWCP was
obligated to review Dr. Ziring’s January 13, 2012 report, which OWCP received on
February 9, 2012. But Dr. Ziring simply indicated that he disagreed with the Board’s decision.
He did not reconcile his history of a knee popping with the history he reported on June 18, 2007,
nor did he reconcile his opinion that appellant sustained a right knee injury with his findings and
diagnosis on June 18, 2007. The Board finds, therefore, that this evidence does not, on its face,
show clear error in the denial of appellant’s right knee claim.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011).

6

Id., Chapter 2.1602.5.b.

7

The one-year period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or review of the written
record decision, any denial of modification following a reconsideration, any merit decision by the Board and any
merit decision following action by the Board, but does not include prerecoupment hearing decisions. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004). (Emphasis
deleted.)

3

Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration
request. The Board will affirm OWCP’s June 8, 2012 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 4, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0661
Issued: September 20, 2019

Case Submitted on the Record

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

JURISDICTION
On February 7, 2018 appellant, through counsel, filed a timely appeal from an October 23,
2017 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.

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 appellant has met her burden of proof to establish continuing residuals
or employment-related disability on or after December 14, 2014 due to her accepted September 24,
2009 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On October 5, 2009 appellant, then a 54-year-old modified letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 24, 2009 she experienced pain in her right
hand and wrist that went up to her shoulder and neck when she unloaded parcels off pallets while
in the performance of duty. She stopped work in November 2009.
OWCP accepted appellant’s claim for tear of the supraspinatus tendon of the right shoulder.
It paid wage-loss compensation and placed her on the periodic rolls effective February 2, 2010.
On January 28, 2010 appellant underwent authorized right shoulder rotator cuff repair by
Dr. John M. Fenlin, an orthopedic surgeon. Dr. Fenlin continued to provide postoperative
treatment and, in a September 1, 2010 progress note, indicated that appellant could work without
restrictions.
OWCP referred appellant’s case, along with a statement of accepted facts (SOAF) and a
copy of the record, to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon and second
opinion examiner, to determine whether she still suffered residuals of her September 24, 2009
employment injury and remained disabled due to her work-related injury. In a September 25, 2014
report, Dr. Didizian discussed appellant’s history of injury and reviewed her medical records. He
explained that the January 28, 2010 right shoulder surgery was successful and that she had
clinically recovered. Dr. Didizian related that appellant could work with no restrictions as related
to her right shoulder. He noted that she may have some restrictions due to an accepted bilateral
carpal tunnel condition and completed a Form OWCP-5.4
On October 17, 2014 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits because her September 24, 2009 work-related injury had resolved. It
afforded her 30 days to submit additional evidence or argument, in writing, if she disagreed with
the proposed termination.

3

Docket No. 16-0978 (issued November 21, 2016).

4

The record reveals that under File No. xxxxxx198 OWCP accepted that appellant sustained bilateral carpal tunnel
syndrome as a result of her employment. The case remained open for ongoing medical treatment, but is not presently
before the Board.

2

In a letter dated October 29, 2014, appellant, through counsel, disagreed with the
October 17, 2014 proposal to terminate benefits.
By decision dated November 18, 2014, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective December 14, 2014, finding that the
weight of medical evidence rested with Dr. Didizian, the second opinion examiner.
On November 25, 2014 appellant, through counsel, requested an oral hearing before a
hearing representative from OWCP’s Branch of Hearings and Review, which was held on
March 27, 2015.
In a report dated November 17, 2014, received by OWCP on December 1, 2014,
Dr. Scott M. Fried, an osteopathic orthopedic surgeon, accurately described the September 24,
2009 employment injury and discussed the medical treatment that appellant had received for both
her accepted right shoulder rotator cuff tear and bilateral carpal tunnel conditions. Upon physical
examination of appellant’s right shoulder, Dr. Fried observed tenderness anteriorly and posteriorly
and limited range of motion to 140 degrees abduction on the right. He noted his disagreement
with Dr. Didizian’s opinion that appellant had fully recovered from her torn right shoulder rotator
cuff injury explaining that, while she experienced some relief with the surgery and treatment, she
still had ongoing evidence of capsulitis of the shoulder as well as rotator cuff weakness. Dr. Fried
opined that any attempts at increased activities with her right shoulder, including regular lifting,
pulling, pushing, grasping, or overhead activity would result in severe ongoing pain and
discomfort. He concluded: “[appellant] remains with ongoing dysfunction and disability, and
these are directly and causally related to her accepted work-related injuries about her right shoulder
and the shoulder musculature … as well as her right carpal tunnel and left carpal tunnel syndrome.”
By decision dated May 29, 2015, OWCP’s hearing representative affirmed the
November 17, 2014 termination decision.
OWCP subsequently received a report dated June 3, 2015 by Dr. Fried in which he noted
that appellant continued to have residual impairment with respect to her right shoulder injury and
brachial plexus nerve injury and remained symptomatic and dysfunctional.
On July 13, 2015 appellant, through counsel, requested reconsideration.
By decision dated December 10, 2015, OWCP denied modification of the May 29, 2015
termination.
Appellant filed an appeal to the Board.
By decision dated November 21, 2016, the Board affirmed in part that OWCP had met its
burden of proof to terminate appellant’s wage-loss compensation and medical benefits, effective
December 14, 2014, based on the medical opinion of Dr. Didizian, OWCP’s second opinion
examiner. The Board also found, however, that the case was not in posture for decision as to
whether appellant had continuing disability after December 13, 2014 causally related to her
accepted employment injury. The Board determined that, following the termination of wage-loss
compensation and medical benefits, OWCP had received new medical evidence from Dr. Fried
who opined that appellant had not fully recovered from her accepted right shoulder injury and was
3

unable to work and therefore a conflict in medical opinion existed between Dr. Fried, appellant’s
treating physician, and Dr. Didizian, the second opinion physician, regarding whether appellant
had continuing disability. The Board remanded the case for referral to an impartial medical
examiner in order to resolve the conflict, to be followed by a necessary further development and a
de novo decision.
Following the Board’s November 21, 2016 decision, OWCP referred appellant to
Dr. Donald Leatherwood, a Board-certified orthopedic surgeon and impartial medical examiner,
in order to resolve the conflict regarding whether appellant was entitled to wage-loss compensation
for continuing residuals or disability due to her September 24, 2009 employment injury. In a
June 22, 2017 report, Dr. Leatherwood accurately described the September 24, 2009 employment
injury and noted that appellant’s claim had been accepted for right shoulder rotator cuff tear. He
indicated that she had not worked since the 2009 injury and that she underwent right shoulder
surgery in 2010. Dr. Leatherwood reviewed appellant’s medical records and provided a detailed
discussion of the medical treatment appellant received. He related that she continued to complain
of right shoulder pain radiating up to the neck. Upon physical examination of appellant’s right
shoulder, Dr. Leatherwood observed tenderness anteriorly, superiorly, and posteriorly, but no
specific acromioclavicular joint tenderness. He indicated that cross body testing, instability, and
drop arm tests were negative. Impingement sign was equivocal. Examination of appellant’s upper
extremities revealed normal capillary refill and intact sensation to light touch.
Dr. Leatherwood opined that, based on his physical examination and review of appellant’s
history, appellant had fully recovered from her right shoulder rotator cuff tear as of Dr. Didizian’s
September 25, 2015 examination. He indicated that she could return to any and all activities that
she engaged in prior to her work-related injury.
In a letter dated July 20, 2017, counsel contended that Dr. Leatherwood’s June 22, 2017
report could not carry the special weight of the medical evidence. He asserted that
Dr. Leatherwood simply agreed with the opinion of Dr. Didizian and had not provided any medical
rationale for his conclusion that appellant had fully recovered from her work-related injury.
Counsel also noted that Dr. Didizian failed to note appellant’s history of preexisting carpal tunnel
syndrome.
In a supplemental August 3, 2017 report, Dr. Leatherwood indicated that his conclusion
that appellant had recovered from her work-related right shoulder rotator cuff tear was supported
by multiple factors. He noted that the January 28, 2010 operative report showed that an excellent
surgical repair of her full-thickness rotator cuff tear was completed. Dr. Leatherwood related that
Dr. Didizian’s clinical examination was consistent with showing full recovery. He also indicated
that he reviewed reports from Dr. Fenlin dated November 10, 2009 through September 1, 2010,
which documented appellant’s right shoulder surgery and indicated that she could return to work
without restrictions on September 1, 2010. Dr. Leatherwood further explained that he disagreed
with Dr. Fried’s opinion because he found no objective finding on clinical examination or on any
of the studies that she had an ongoing significant injury.
By decision dated October 23, 2017, OWCP denied modification of the December 10,
2015 decision, finding that the special weight of medical evidence rested with Dr. Leatherwood as
the impartial medical examiner who opined in his June 22 and August 3, 2017 reports that

4

appellant had no employment-related residuals or disability after December 13, 2014 due to her
September 24, 2009 employment injury.
LEGAL PRECEDENT
Once OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish that he or she has continuing disability causally related to the accepted employment
injury.5 To establish causal relationship between the disability claimed and the employment injury,
appellant must submit rationalized medical evidence or opinion based on a complete medical and
factual background supporting causal relationship.6
When 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.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish continuing
residuals or employment-related disability on or after December 14, 2014 due to her accepted
September 24, 2009 employment injury.
Following remand of this case, OWCP properly referred the case record and a SOAF to
Dr. Leatherwood for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a), to resolve
a conflict in medical opinion between Dr. Fried and Dr. Didizian regarding the issue of whether
appellant had continuing residuals or disability causally related to the accepted September 24,
2009 employment injury. Dr. Leatherwood issued reports dated June 22 and August 3, 2017 in
which he opined that appellant no longer had residuals of her September 24, 2009 employment
injury and was able to return to work. He accurately described appellant’s history and reviewed
her medical records. Dr. Leatherwood performed a thorough, clinical examination and provided
findings on examination. He opined that there were no objective findings to support that appellant
continued to experience residuals of her accepted right shoulder condition. Dr. Leatherwood
explained that appellant had undergone successful surgery in January 2010 to repair her right
shoulder rotator cuff tear and that clinical examination was consistent with showing a full recovery.
He reported that she could return to any and all activities that she engaged in prior to her workrelated injury.

5

See D.M., Docket No. 17-1052 (issued January 24, 2019); J.R., Docket No. 17-1352 (issued August 13, 2018).

6
See D.M., id.; A.C., Docket No. 16-1670 (issued April 6, 2018); R.D., Docket No. 16-0892 (issued
December 20, 2016).
7

5 U.S.C. § 8123(a) provides that if there is a disagreement between the physician making the examination for the
United States and the physician of an employee, the Secretary shall appoint a third physician (known as a referee
physician or impartial medical specialist) who shall make an examination. See also Darlene R. Kennedy, 57 ECAB
414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

The Board finds that Leatherwood’s opinion was based on a proper factual and medical
history and he had thoroughly reviewed the relevant factual and medical evidence.8 Accordingly,
the Board finds that Dr. Leatherwood’s medical opinion is entitled to special weight as the
impartial medical examiner and was sufficient to establish that appellant no longer had continuing
disability or residuals causally related to her September 24, 2009 employment injury on or after
December 14, 2014.
There is no remaining contemporaneous medical evidence of record to establish that
appellant required further medical care or remained disabled due to her September 24, 2009
employment injury on or after December 14, 2014. Appellant has not submitted objective
rationalized medical evidence to establish that she continued to suffer from or require medical
treatment for conditions causally related to her September 24, 2009 employment injury, which is
sufficient to overcome the special weight given to Dr. Leatherwood as the impartial medical
examiner. Therefore, the Board finds that she has not met her burden of proof.
On appeal counsel alleges that Dr. Leatherwood’s opinion could not carry the special
weight of the medical evidence because he ignored appellant’s physical findings of tenderness in
the right shoulder and did not demonstrate any knowledge of the physical requirements of her letter
carrier position. As explained above, however, Dr. Leatherwood’s opinion was based on an
accurate history and clinical examination and constitutes the special weight of the medical
evidence.
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 continuing
disability on or after December 14, 2014 due to her accepted September 24, 2009 employment
injury.

8

The opinion of an impartial medical examiner, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Id.; see also D.T., Docket No. 10-2258 (issued August 1, 2011); Gloria J.
Godfrey, 52 ECAB 486 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the October 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 14-1813
Issued: May 15, 2015

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 August 18, 2014 appellant, through her attorney, filed a timely appeal of a July 23,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition due to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant appealed this decision to the Board, but the original record submitted by OWCP did not include this
decision. In an Order to Complete the Record within 30 Days, dated February 12, 2015, the Board directed OWCP
to produce the complete case record. Order to Complete the Record within 30 Days, Docket No. 14-1813 (issued
February 12, 2015). The Board received the completed record on April 9, 2015.

FACTUAL HISTORY
On December 7, 2011 appellant, then a 46-year-old mail handler, filed an occupational
disease claim alleging that he developed left shoulder subacromial impingement, bursitis, fraying
of the rotator cuff, and acromioclavicular joint arthropathy due to repetitive motion in the
performance of his job duties as a mail handler. He stated that he first became aware of his
condition on February 2, 1999 and that he first realized that this condition was due to his work
on that date. Appellant stated that his left shoulder condition was documented with his right
shoulder injury on February 2, 1999 and that his left shoulder condition had worsened with time.
In a letter dated May 18, 2012, the employing establishment disputed appellant’s claim
alleging that it was untimely as he first became aware of his left shoulder condition on
February 2, 1999 and underwent surgery on August 10, 2011. It further argued that appellant
had not submitted sufficient medical opinion evidence to establish a causal relationship between
appellant’s diagnosed left shoulder condition and his employment duties.
OWCP informed appellant by letter dated May 23, 2012 of the additional factual and
medical evidence needed to support his claim. Specifically it noted that appellant had not
submitted medical evidence in support of a diagnosed condition.
Dr. John Pinkowski, a Board-certified orthopedic surgeon, performed arthroscopy on
appellant’s left shoulder on August 10, 2011 to repair left shoulder subacromial impingement,
bursitis, minimal fraying of the rotator cuff, acromioclavicular joint arthropathy, and mild
fraying of the superior aspect of the subscapularis.
By decision dated July 9, 2012, OWCP found that appellant was a federal employee and
had filed a timely claim, but denied his claim as he had not established fact of injury through the
submission of factual evidence describing the specific employment duties to which he attributed
his condition.
Appellant requested reconsideration on August 3, 3012 through the submission of a form
report. He also submitted a factual statement dated August 3, 2012 noting that he began working
for the employing establishment in November 1989. Appellant stated that his duties included
throwing trays of mail overhead six and a half hours a day. He threw 900 to 1,100 trays a day.
In 1995 appellant’s duties involved the automation section and he was required to move trays of
mail from rollers that were head high. He moved 1,100 to 1,500 trays a day for 6½ hours.
Appellant reported that each tray weighed 25 pounds. He stated that after four years both
shoulders began troubling him. Appellant filed a claim for his right shoulder on February 2,
1999 and received treatment. His job duties changed in 2003 and he was required to work as a
dumper stacking 80-pound hampers into stacks of 3, about 60 hampers a day. In 2012 appellant
began driving a tow motor with no overhead lifting.
In a decision dated November 8, 2012, OWCP determined that appellant had established
his employment duties and submitted sufficient medical evidence of a diagnosed condition.
However, it denied his claim because he had not established a causal relationship between his
diagnosed condition and his implicated employment duties.

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Appellant, through his attorney, requested reconsideration on February 20, 2013. In a
note dated February 14, 2006, Dr. Pinkowski examined appellant due to left shoulder symptoms.
He reported appellant’s statements that he injured his left shoulder at the same time as he injured
his right shoulder at work. Dr. Pinkowski stated, “However, he saw me for his right shoulder.
He had pain and discomfort in the right shoulder at that time and the record is silent with regard
to the symptoms to the left shoulder at that time.” On physical examination appellant’s left
shoulder demonstrated tenderness over the acromioclavicular joint to palpation with no
glenohumeral instability. He also exhibited pain and discomfort with supraspinatus stress testing
and resisted external rotation and abduction. Appellant had normal muscle strength.
Dr. Pinkowski noted that appellant’s symptoms of pain and discomfort in the left
acromioclavicular joint were consistent with his history of work injury. He opined that
appellant’s left shoulder condition was related to his job activities in 1999. Dr. Pinkowski stated,
“I feel that with a reasonable degree of medical certainty that it is related to his occupation since
it is a similar problem that he had on his right shoulder.”
In a note dated July 19, 2012, Dr. Pinkowski noted appellant’s left shoulder surgery and
continued discomfort. He stated that appellant’s shoulder condition was related to repetitive
overhead activity at work.
OWCP requested additional information from Dr. Pinkowski by letter dated
March 22, 2013. It asked that he provide a statement of whether appellant’s work activities
directly caused or contributed to his diagnosed left shoulder condition. OWCP further asked that
Dr. Pinkowski respond to specific questions and allowed 30 days for a response. No response
was received.
By decision dated April 25, 2013, OWCP denied modification of its prior decisions
finding that Dr. Pinkowski had failed to identify specific employment factors to which he
attributed appellant’s condition. It found that he mentioned overuse and attempted to correlate
appellant’s left shoulder condition to his accepted right shoulder condition but failed to establish
a causal connection to the employment factors.
Counsel requested reconsideration on April 24, 2014. He submitted notes from
Dr. Jeffrey S. Noble, a Board-certified orthopedic surgeon, dated February 9 and May 20, 1999
discussing arthropathy and mild arthritic changes of the distal clavicle. Dr. Noble stated that
appellant was lifting weights and developed pain and discomfort in both shoulders after his
workout. Appellant’s right shoulder continued to bother him more. He continued to lift weights
and aggravated his right shoulder with night pain, crepitation, and intrascapular pain. Counsel
also resubmitted Dr. Pinkowski’s February 14, 2006 and July 19, 2012 notes.
In a decision dated July 23, 2014, OWCP denied modification of its prior decisions
finding that although Dr. Noble’s reports were new evidence, this evidence failed to establish
any causal relationship between appellant’s alleged left shoulder condition and his employment.

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LEGAL PRECEDENT
OWCP regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
ANALYSIS
Appellant filed an occupational disease claim alleging left shoulder subacromial
impingement, bursitis, minimal fraying of the rotator cuff, acromioclavicular joint arthropathy,
and mild fraying of the superior aspect of the subscapularis condition as a result of repetitive
motion in his position of mail handler. In his narrative statement, he stated those duties began in
November 1989 which entailed throwing trays of mail overhead six and a half hours a day. In
1995 appellant’s duties involved the automation section and was required to move 25-pound
trays of mail from rollers that were head high. He stated that after four years both shoulders
began troubling him.
Dr. Noble examined appellant on February 9 and May 20, 1999 for his left shoulder
condition. He stated that appellant was lifting weights and developed pain and discomfort in
both shoulders after his workout. These notes do not support appellant’s claim for an
employment-related left shoulder condition. Dr. Noble attributed appellant’s left shoulder
condition to appellant’s activity of lifting weights rather than to the performance of his duties as
a mail handler.
Dr. Pinkowski completed a note on February 14, 2006 and reported appellant’s
statements that he injured his left shoulder at the same time as he injured his right shoulder at
work in 1999. He noted that he initially treated appellant for his right shoulder and that
appellant’s “record is silent with regard to the symptoms to the left shoulder at that time.”
Dr. Pinkowski opined that appellant’s symptoms of pain and discomfort in the left
acromioclavicular joint were related to his job activities in 1999. He stated, “I feel that with a
reasonable degree of medical certainty that it is related to his occupation since it is a similar
problem that he had on his right shoulder.” In a note dated July 19, 2012, Dr. Pinkowski noted
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

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appellant’s left shoulder surgery and continued discomfort. He explained that appellant’s
shoulder condition was related to repetitive overhead activity at work.
The Board finds that Dr. Pinkowski’s reports are not based on a complete factual
background and are not sufficiently detailed. Dr. Pinkowski did not mention appellant’s history
of lifting weights in 1999 described by Dr. Noble. He did not describe the specific overhead
activities that appellant performed at work nor the period during which appellant performed
these activities. Without a complete factual background including prior history of injury,
knowledge of the variety and timing of appellant’s employment duties, and an opinion
explaining how and why the employment duties, and not lifting weights, caused or contributed to
appellant’s diagnosed left shoulder condition Dr. Pinkowski’s reports are not sufficient to meet
appellant’s burden of proof.
The Board finds that appellant did not submit the necessary medical opinion evidence
based on a complete factual background to establish that his left shoulder condition which began
in 1999 was causally related to his employment duties. Without this required medical evidence,
appellant has failed to establish that he sustained an occupational left shoulder condition.
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 submitted the necessary medical opinion evidence
to establish a left shoulder condition due to factors of his federal employment.

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ORDER
IT IS HEREBY ORDERED THAT the July 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2015
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

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