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

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1014
Issued: September 26, 2014

Case Submitted on the Record

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

JURISDICTION
On March 28, 2014 appellant, through counsel, filed a timely appeal of the December 10,
2013 decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
request for reconsideration without conducting a merit review. Because more than 180 days
elapsed since the most recent merit decision dated August 29, 2013 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 20, 2012 appellant, then a 43-year-old letter carrier, filed a recurrence of
disability claim asserting that on December 29, 2011, while exiting his work vehicle and
changing mail trays, he experienced low back pain. He listed the date of original injury as
April 17, 2010. OWCP developed this claim as a new traumatic injury. Appellant stopped work
on January 14, 2012.
Appellant submitted a January 19, 2012 report from Dr. Wei Xu, a Board-certified
physiatrist, who treated him for back and right lower limb pain which began three weeks prior at
work. Dr. Xu noted findings of tenderness with spasm of the right lumbar fascia muscles and
limited range of motion of the lumbar spine. He diagnosed new onset of back pain and right
lower limb pain secondary to lumbar strain and sprain, possible aggravation of a disc herniation
and right-sided L3-L4 nerve root compression. Dr. Xu noted a causal relationship between
appellant’s pain and injury sustained at work three weeks prior. He returned appellant to work at
limited duty. In a February 2, 2012 report, Dr. Xu noted improvement in appellant’s symptoms
after physical therapy. He noted decreased range of motion of the lumbar spine and diagnosed
improved back pain and recommended physical therapy. On March 1, 2013 Dr. Xu advised that
appellant reported his symptoms were significantly improved with physical therapy. Physical
examination was unchanged. Dr. Xu diagnosed improving back pain with physical therapy and
increased appellant’s work hours with limited lifting. In reports dated April 5 and May 3, 2012,
he noted that appellant’s back pain improved with physical therapy. During this time period,
appellant reported radiating pain involving the right lower limb and decreased lumbar range of
motion. Dr. Xu diagnosed improving lower back pain with radiating pain to the right lower
limb.
Appellant submitted a February 10, 2012 magnetic resonance imaging scan of the lumbar
spine which revealed severe multilevel degenerative disc and facet changes with central stenosis
and neural foraminal narrowing at L3-4, L5-S1 and L4-5. He also submitted physical therapy
notes.
On July 24, 2013 OWCP advised appellant that his claim was originally received as a
simple, uncontroverted case which resulted in minimal or no time loss from work. It was
administratively handled to allow limited medical payments. Because he sought further medical
treatment, appellant’s claim would be formally adjudicated. OWCP requested that appellant
submit a comprehensive medical report from his treating physician which included a reasoned
explanation as to how the specific work factors or incidents identified by him contributed to his
claimed lumbar condition. Appellant did not respond.
In a decision dated August 29, 2013, OWCP denied appellant’s claim. It found that the
December 29, 2011 incident occurred as alleged but the medical evidence was insufficient to
establish that appellant’s claimed back condition was causally related to the work incident.
In an appeal request form dated September 30, 2013, appellant through his attorney
requested reconsideration. He submitted an October 8, 2013 letter and requested reconsideration
asserting that OWCP wrongly denied his benefits. Appellant believed the factual and medical
evidence demonstrated that his injury was accepted by OWCP. He requested that OWCP

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confirm the prior claim approval, and comply with an offer of modified assignment dated
March 2, 2012, pay all wage loss and provide for all necessary medical treatment. Appellant
submitted reports from Dr. Xu dated January 19 to April 5, 2012 and a notice of recurrence of
disability dated January 20, 2012, all previously of record. He also submitted an OWCP letter
accepting his claim for lumbar sprain in claim number xxxxxx655.2 Also submitted was a lightduty job offer dated March 2, 2012.
In a December 10, 2013 decision, OWCP denied appellant’s request for reconsideration.
It found that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
OWCP denied appellant’s claim for a traumatic injury on the grounds that the medical
evidence was insufficient to establish that appellant’s claimed conditions were causally related to
work events.6 Thereafter, it denied appellant’s reconsideration request, without a merit review.

2

Claim number xxxxxx655 is not presently before the Board.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision;
therefore, the Board is unable to review evidence submitted by appellant on appeal.

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The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), for OWCP to reopen his case for review of the merits. In his request for
reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a
specific point of law. In his October 8, 2013 statement, appellant asserted that factual and
medical evidence demonstrated that his work injury claim was accepted by OWCP. He
requested that OWCP confirm its prior approval of his claim and comply with the offer of
modified assignment dated March 2, 2012, pay all wage loss and provide for all necessary
medical treatment. Appellant’s contention does not establish a legal error by OWCP in the
adjudication of his claim. The underlying issue in this case is whether appellant’s diagnosed
lumbar condition was causally related to the December 29, 2011 work incident. That is a
medical issue which must be addressed by relevant medical evidence.7 A claimant may be
entitled to a merit review by submitting new or relevant evidence, but appellant did not submit
any new or relevant medical evidence in support of his request for reconsideration.
Appellant submitted reports from Dr. Xu dated January 19 to April 5, 2012 and the notice
of recurrence of disability dated January 20, 2012. However, this evidence is duplicative of
evidence previously submitted and considered by OWCP in its decision dated August 29, 2013.
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.8 Therefore, these reports are insufficient to
require OWCP to reopen the claim for a merit review.
Appellant submitted an OWCP letter accepting his claim for lumbar sprain in claim
number xxxxxx655 and a light-duty job offer dated March 2, 2012. As noted, this evidence
notes that appellant has a separate claim accepted for a lumbar sprain and was on limited duty. It
was not accompanied by any new medical evidence. As explained, the underlying issue in this
claim is whether the medical evidence establishes that appellant’s back condition in the present
claim was caused or aggravated by the December 29, 2011 incident. The letter of acceptance
from OWCP on a separate claim and the job offer are not relevant to this issue. Therefore, this
evidence is insufficient to warrant reopening the case for a merit review
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant’s counsel asserts that he submitted sufficient evidence to establish
that he developed a lumbar condition causally related to his employment duties and that OWCP
improperly denied his reconsideration request. As discussed, the Board does not have
jurisdiction to review the merits of his claim. Appellant did not submit any evidence or
argument in support of his reconsideration request that warrants reopening of his claim for a
merit review under 20 C.F.R. § 10.606(b)(2).
7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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

Docket No. 08-669
Issued: August 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 9, 2008 appellant filed a timely appeal from a November 9, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs that denied her request for
reconsideration and a May 25, 2007 decision that denied her claim for wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
appeal.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she was
entitled to compensation for temporary total disability beginning December 2004; and
(2) whether the Office properly denied appellant’s request for reconsideration without
conducting a merit review.

FACTUAL HISTORY
On August 30, 2004 appellant, then a 38-year-old transportation security screener, filed a
traumatic injury claim stating that she injured her right elbow while lifting bags that day.
Appellant did not initially stop work but performed light duty. In an October 25, 2004 report,
Dr. Bradford L. Boone, a Board-certified orthopedic surgeon, diagnosed chronic medial
epicondylitis and humeral ulnar neuritis. Appellant was terminated for misconduct on
December 28, 2004, after she tested positive (for methamphetamines and amphetamines) during
a random drug test. On December 22, 2004 Dr. James F. Bischoff, a Board-certified orthopedic
surgeon, diagnosed persistent ulnar neuropathy of the right arm and opined that appellant’s
condition was related to gripping and grasping items with her hand while at work. The Office
accepted appellant’s claim for right elbow medial epicondylitis and lateral epicondylitis.
On February 24, 2005 Dr. Boone diagnosed ulnar neuritis and cubital tunnel syndrome,
which he explained had not improved with conservative treatment. He recommended that
appellant undergo an ulnar nerve decompression. She underwent surgery for right elbow ulnar
nerve decompression and medial epicondyle and flexor pronator micro-debridement on
April 15, 2005. On April 25, 2005 Dr. Boone reported that appellant was recovering well
following surgery but remained totally disabled. In an August 1, 2005 note, Dr. Boone stated
that appellant was capable of performing light duty and determined that she would reach
maximum medical improvement in about one month. On August 31, 2005 he concluded that she
could perform regular work but was not ready for an impairment rating. On January 26, 2006
Dr. Boone explained that, although appellant had continuing medial pain, her range of motion
was full, her strength was reasonably good and she was capable of performing regular work
tasks. He concluded that she had reached maximum medical improvement and released her from
treatment.
In a July 27, 2006 report, Dr. Boone stated that appellant’s ulnar nerve condition had
deteriorated over the past six months. He noted that she had improved from a pain perspective
but exhibited persistent diminished sensation and very poor motor function. Dr. Boone
diagnosed severe ulnar neuropathy which had progressed over the previous six months after
having shown initial improvement following surgery. He suspected that the condition might be
due to “something more proximal or distal” or “perhaps something systemic.” On August 15,
2006 Dr. Bischoff diagnosed ulnar intrinsic atrophy of the right hand and advised that appellant
was a candidate for an ulnar nerve decompression of the elbow.
On August 31, 2006 appellant underwent an authorized decompression of the right ulnar
nerve of the elbow. In a September 14, 2006 report, Dr. Bischoff advised that she was
recovering well from her epicondylectomy and decompression of the ulnar nerve but was
currently unable to perform work tasks with her right hand. On January 17, 2007 he stated that
appellant was unable to lift more than 10 pounds with her right hand and was currently not
working. He determined that she would likely reach maximum medical improvement within 60
days.
In an October 4, 2006 telephone memorandum, the Office noted that appellant stated that
the employing establishment fired her when she informed them that she needed surgery.

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On December 11, 2006 appellant claimed compensation for wage loss since December 4,
2004 and a schedule award. On February 14, 2007 Dr. Bischoff reported that appellant’s
soreness had improved since her surgery, but that she still had some paresthesia in the ulnar
distribution. He determined that she had reached maximum medical improvement and was able
to work with a 10-pound lifting restriction for the right hand.
The employing establishment submitted a March 13, 2006 decision in which its
disciplinary review board affirmed appellant’s dismissal for cause. It explained that appellant
was randomly selected for drug testing on December 13, 2004 and that a urine test taken that day
read positive for the presence of methamphetamines and amphetamines. The employing
establishment stated that it terminated appellant’s employment under its “zero tolerance” policy
that prohibited employees from using illegal drugs whether on or off-duty. Although appellant
contended that over-the-counter medications had caused the positive test results, the employing
establishment found that the gas chromatography/mass spectrometry drug test would not have
yielded a false positive result based on over-the-counter medications.
In an April 6, 2007 report, Dr. Boone found that appellant was able to work with a lifting
restriction and noted that if she was unable to return to her previous position, she would need
vocational rehabilitation.
By decision dated May 23, 2007, the Office denied appellant’s claim for wage-loss
compensation from December 4, 2004 to April 14, 2005 and beginning August 2, 2005. It found
that the medical evidence did not support her work-related total disability during that period.
The Office noted that appellant was terminated for cause on December 28, 2004 and not for the
effects of her work injury.
It authorized wage-loss compensation from April 15 to
1
August 1, 2005. On May 31, 2007 the Office granted appellant a schedule award for 41 percent
impairment of the right upper extremity.2
On August 9, 2007 appellant requested reconsideration and asserted that she was under a
doctor’s care and unable to work from October 25, 2004 through February 14, 2007. She also
argued that she was unable to obtain employment with a different organization or agency
because of her work-related injury.
By decision dated November 9, 2007, the Office denied appellant’s request for
reconsideration without conducting further merit review.
LEGAL PRECEDENT -- ISSUE 1
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.3 As used in the Federal
1

The period April 15 to August 1, 2005 represents the period that appellant was totally disabled while recovering
from her April 15, 2005 authorized surgery. The Office noted that Dr. Boone released appellant to return to light
duty on August 1, 2005.
2

On appeal, appellant does not contest the schedule award.

3

William A. Archer, 55 ECAB 674 (2004).

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Employees’ Compensation Act, the term “disability” means incapacity, because of an
employment injury, to earn the wages that the employee was receiving at the time of injury.4
Disability is thus not synonymous with physical impairment, which may or may not result in
incapacity to earn wages.5 Whether a particular injury causes an employee to be disabled for
employment, and the duration of that disability, are medical issues, which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.6 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.7 The Board has
held that when a claimant stops work for reasons other than her accepted employment injury, she
has no disability within the meaning of the Act.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant developed right elbow medial and lateral epicondylitis
on August 30, 2004 while lifting bags at work. She performed light-duty work until she was
terminated for misconduct on December 28, 2004. Appellant underwent authorized surgeries on
April 15, 2005 and August 31, 2006. Dr. Boone released her to return to light duty after her first
surgery on August 1, 2005 and she received compensation for this period of disability. After
appellant’s August 31, 2006 surgery Dr. Boone on September 14, 2006 stated that she could not
work with her right hand.9 The record also does not reflect that appellant would not have been
provided appropriate light-duty work had she not been terminated for cause. Compensation for a
work stoppage attributable to misconduct cannot be paid.10 Furthermore, appellant did not
submit any medical evidence to establish that she was totally disabled prior to her termination for
misconduct on December 28, 2004. She submitted an October 25, 2004 report from Dr. Boone
and a December 22, 2004 report from Dr. Bischoff. Dr. Boone did not address appellant’s status
for work but Dr. Bischoff found that she was capable of performing regular activities.
Despite appellant’s assertion that the employing establishment terminated her
employment because she needed surgery, there is no evidence suggesting that she was dismissed
4

Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.5(f).

5

See Fred Foster, 1 ECAB 21 (1947).

6

Fereidoon Kharabi, 52 ECAB 291 (2001); see also Edward H. Horton, 41 ECAB 301 (1989).

7

Sandra D. Pruitt, 57 ECAB 126 (2005); William A. Archer, supra note 3; Fereidoon Kharabi, supra note 6.

8

John W. Normand, 39 ECAB 1378 (1988).

9

The physician did not specifically indicate whether appellant had total disability for any particular period
attributable to the August 31, 2006 authorized surgery. As noted, the Office paid disability compensation from
April 15 to August 1, 2005 when appellant was totally disabled due to her April 15, 2005 authorized surgery.
10

See supra note 8. See also Major W. Jefferson, III, 47 ECAB 295 (1996) (where there was no evidence that
appellant was not capable of performing his assigned duties after the date of his termination for cause, he had no
disability within the meaning of the Act after that date and had no entitlement to compensation for total disability for
that period).

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for reasons other than misconduct. The employing establishment explained that appellant’s
employment was terminated after she tested positive for methamphetamines and amphetamines
during a random drug test. Appellant did not submit any evidence to establish that she was
terminated for any other reason. As the withdrawal of her position was premised on misconduct,
appellant is not entitled to wage-loss compensation for periods after December 28, 2004 in which
she was partially disabled due to her work injury.11 The Board finds that the evidence does not
establish appellant’s entitlement to further disability compensation for the period beginning
December 2004.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing
federal regulation provides guidance for the Office in using this discretion.12 The regulation
provides that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”13
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.14 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.15

11

Cf. 20 C.F.R. § 10.5(x) (there is no recurrence of disability where a light-duty assignment is withdrawn for
reasons of misconduct).
12

20 C.F.R. § 10.606(b)(2) (1999).

13

Id.

14

20 C.F.R. § 10.608(b) (1999).

15

Annette Louise, 54 ECAB 783 (2003).

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ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting further merit review because she failed to meet any of the listed three
regulatory criteria. In support of her reconsideration request, appellant submitted a statement
asserting that she was under a doctor’s care from October 25, 2004 through February 14, 2007.
Although appellant conceded that her employment was terminated on December 28, 2004, she
stated that her medical condition precluded her from obtaining any other employment and that
she was temporarily totally disabled during the period claimed. However, appellant did not
assert that the Office misapplied or misinterpreted a point of fact, nor did she advance any new
and relevant legal arguments. With her request for reconsideration, appellant submitted several
medical reports which had been previously submitted and considered by the Office.16 She did
not provide any new and relevant medical reports supporting her assertion of total disability.
The Board finds that the Office properly denied appellant’s request for reconsideration because
she neither asserted that the Office misapplied or misinterpreted a specific point of fact or law,
advanced a new and relevant legal argument, nor submitted new and relevant medical evidence.
CONCLUSION
The Board finds that appellant has not established that she was entitled to compensation
for temporary total disability beginning December 4, 2004 and that the Office properly denied
appellant’s request for reconsideration without conducting a merit review.

16

Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case. J.P., 58 ECAB ___ (Docket No. 06-1274, issued January 29, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the May 25 and November 9, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Long Beach, CA, Employer
__________________________________________

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

Docket No. 13-2016
Issued: March 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 3, 2013 appellant, through his attorney, filed a timely appeal from a
May 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hernia causally related to factors of his federal employment.
FACTUAL HISTORY
On May 18, 2012 appellant, then a 37-year-old transportation security officer, filed an
occupational disease claim alleging a hernia in the performance of duty. He was directed to load
1

5 U.S.C. § 8101 et seq.

two machines on a ramp and was subjected to stress and strain while loading the machines.
Appellant became aware of his condition and realized that it was caused or aggravated by his
employment on May 16, 2012.
By letters dated May 31, 2012, appellant was advised to submit additional factual and
medical evidence to support his claim for benefits.
In a June 22, 2012 report, Dr. Brian Minkus, Board-certified in family medicine and an
osteopath, noted that appellant was seen for left pelvis and groin pain on May 14, 2012.
Appellant related that the pain occurred with prolonged standing and heavy lifting at work.
Dr. Minkus noted that appellant received a physical examination prior to his employment and did
not exhibit signs of a hernia. His examination revealed a left inguinal hernia, Dr. Minkus saw
appellant on June 18, 2012 and that there was no change in the left inguinal hernia. He advised
appellant to continue to avoid heavy lifting, strenuous physical activities and prolonged standing
until the hernia was repaired and he had fully recovered. Dr. Minkus completed disability
certificates placing appellant on restricted duties at work.
In a June 21, 2012 statement, appellant noted that his hernia occurred when he was asked
by a supervisor to load two baggage machines. As he was loading heavy bags from conveyor
belt onto the two machines, he twisted, turned and bent his body. Appellant explained that he
picked up a heavy bag and felt a pull in his lower groin/abdomen region and assumed it was a
pulled muscle.
In a July 3, 2012 statement, Cathy Bridges, the employer’s administrative officer, noted
appellant’s allegations and discussed his duties and the requirements of his various positions.
She advised that lifting was not a requirement in his job and that he had not worked in the
checked baggage area since December 4, 2011. Ms. Bridges provided a copy of appellant’s
May 18, 2012 workplace injury statement and photographs of the checked baggage area.
In an August 14, 2012 statement, appellant described his duties and the physical
requirements of the position. OWCP received witness statements from coworkers confirming
that appellant and others lifted bags on the ramps in the course of their duties. It also received
photographs of the loading ramp, with baggage.
In a letter dated September 5, 2012, James Tiampo, the employer’s assistant federal
security director for screening, noted that appellant had previously been a physical education
teacher/assistant and track coach. He reviewed the statements of appellant’s coworkers and
asserted that there was no need to lift baggage but confirmed that, occasionally, there was a need
to lift baggage. Mr. Tiampo also provided statements from managers and coworkers.
In an October 18, 2012 decision, OWCP denied appellant’s claim. It accepted that he
lifted baggage but found that the medical evidence did not establish that the claimed hernia was
related to his work duties.
On November 5, 2012 appellant’s representative requested a telephonic hearing, which
was held on February 15, 2013. At the hearing, appellant denied having a hernia before
May 2012. He explained that his duties required lifting, twisting and bending to load baggage of
varying weight into two machines. Appellant experienced intermittent pain in the course of his
2

duties but it did not subside after a few days and continued to worsen. He continued to have pain
after changing positions and sought medical treatment in May 2012. Appellant’s representative
argued that Dr. Minkus’ December 26, 2012 report supported causal relationship. Appellant
noted that he did not have surgery and stopped work on October 30, 2012, when the employing
establishment informed him that there was no work available within his medical restrictions.
In a December 26, 2012 form report, Dr. Minkus noted that appellant was engaged in
lifting at work and experienced left testicle pain. He diagnosed a left inguinal hernia.
Dr. Minkus addressed casual relation by ascribing to the statement: “the facts of injury are the
direct and proximate cause of the diagnosis that I cited above. This is based upon a reasonable
medical probability. There may be other causes for this medical problem, but one of the causes
is clearly the activities of work described [by appellant] and described above.”
In a March 21, 2013 statement, Mr. Tiampo again explained the details of the checked
baggage area and emphasized that it was designed to minimize physical transportation, loading
and lifting of bags that needed to be screened. Occasionally, a need would arise such that it
would be necessary for an employee to physically move bags. In a March 22, 2013 statement,
Mr. Tiampo confirmed that employees did occasionally lift baggage.
By decision dated May 6, 2013, an OWCP hearing representative affirmed the
October 18, 2012 decision. She found that appellant did not submit sufficient medical evidence
addressing causal relation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, 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.5
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

See S.P., 59 ECAB 184, 188 (2007).

5

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

3

Rationalized medical opinion evidence is generally 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.6
ANALYSIS
The record establishes that appellant’s job entailed screening passengers and lifting
baggage and such pushing, bending and twisting as was necessary to send baggage through the
screening machine. He was diagnosed with a left inguinal hernia. The Board finds that the
medical evidence is insufficient to establish that his employment duties caused or contributed to
the diagnosed hernia.
In a June 22, 2012 report, Dr. Minkus, noted that appellant was seen for left pelvis and
groin pain arising on May 14, 2012. He diagnosed a left inguinal hernia. Appellant related that
the pain occurred with prolonged standing and heavy lifting at work. Dr. Minkus noted that a
physical examination prior to appellant’s employment did not exhibit signs of a hernia. The
Board finds that he did not offer a rationalized opinion on causal relation other than to note that
appellant had pain that occurred while loading baggage at work. The Board has found that
because an employee is asymptomatic before an employment injury is insufficient, without
supporting medical rationale, to establish causal relationship.7 Dr. Minkus did not describe the
process by which appellant’s job duties were competent to cause or aggravate the diagnosed
hernia.
In a December 26, 2012 form report, Dr. Minkus provided brief written responses to
several questions. He noted that appellant was engaged in lifting at work and experienced left
testicle pain. Dr. Minkus diagnosed a left inguinal hernia. He ascribed to the form statement
concerning causal relationship that “the facts of injury are the direct and proximate cause of the
diagnosis that I cited above. This is based upon a reasonable medical probability. There may be
other causes for this medical problem, but one of the causes is clearly the activities of work
described [by appellant] and described above.” The Board notes that Dr. Minkus’ response on
the form fails to adequately explain how the specific job duties identified by appellant caused or
contributed to his hernia. Dr. Minkus did not explain the pathophysiological process by which
lifting bags or bending and twisting at work, would cause the diagnosed hernia. The Board has
long held that medical opinions not containing rationale on causal relation are of diminished
probative value.8
As Dr. Minkus failed to provide a rationalized medical opinion explaining how the
diagnosed hernia was related to specific job duties, appellant failed to establish that his hernia is
causally related to his federal employment.
6

I.J., 59 ECAB 408 (2008); Woodhams, supra note 3.

7

Thomas Petrylak, 39 ECAB 276 (1987).

8

Carolyn F. Allen, 47 ECAB 240 (1995).

4

On appeal, appellant’s representative argued that appellant met his burden of proof as the
evidence was sufficient on causal relation. The Board notes that causal relationship is a medical
issue and the evidence generally required to establish causal relationship is rationalized medical
opinion evidence.9 The medical evidence must include rationale explaining how the physician
reached the conclusion he or she is supporting.10 OWCP’s procedures recognize that, with
certain clear-cut traumatic injuries, such as a fall from a scaffold resulting in a broken arm, the
record may require only an affirmative statement by a physician to establish causal
relationship.11 This occupational disease claim is not a situation with an injury that can be
identified on visual inspection or a clear-cut traumatic injury requiring only an affirmative
statement.12 Dr. Minkus did not provide rationale for his opinion on causal relationship.
Appellant may submit evidence or argument with a written request for reconsideration
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 that he
sustained a hernia causally related to factors of his employment.

9

Y.J., Docket No. 08-1167 (issued October 7, 2008).

10

See also T.M., Docket No. 08-975 (2009) (a physician’s opinion on causal relationship between a claimant’s
disability and an employment injury is not conclusive simply because it is rendered by a physician; the physician
must provide rationale for the opinion reached and where no such rationale is present, the medical opinion is of
diminished probative value); Beverly A. Spencer, 55 ECAB 501 (2004).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (January 2013).

12

See A.S., Docket No. 07-141 (issued March 27, 2007).

5

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
X.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 19-1290
Issued: January 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On May 16, 2019 appellant filed a timely appeal from a November 20, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 20, 2018, the date of OWCP’s last decision, was
May 19, 2019. As this fell on a Sunday, appellant had until the following business day, Monday, May 20, 2019, to
file the appeal. Since using May 21, 2019, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 16, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
1

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish more than five
percent permanent impairment of the left lower extremity and more than two percent permanent
impairment of the right lower extremity, for which she previously received schedule award
compensation.
FACTUAL HISTORY
On October 15, 2014 appellant, then a 47-year-old supervisor of maintenance operations,
filed an occupational disease claim (Form CA-2) alleging that she developed pain in both feet
causally related to factors of her federal employment. OWCP accepted the claim for bilateral
acquired hallux valgus. Appellant underwent a left foot bunionectomy and osteotomy of the first
metatarsal and phalanx on January 12, 2016 and a removal of internal hardware from the left first
metatarsal and proximal phalanx of the great toe on January 31, 2017. She stopped work on
January 12, 2016 and returned to modified work on August 5, 2017.
In an impairment evaluation dated March 5, 2018, Dr. Greg Gardner, an osteopath,
reviewed appellant’s history of injury and resultant surgeries. He diagnosed bilateral hallux
valgus. With regard to the left side, on examination, Dr. Gardner found moderate tenderness to
palpation of the left foot. He measured range of motion (ROM) of the left great toe three times,
with the highest measurement demonstrating 30 degrees flexion of the metatarsophalangeal (MTP)
joint, 25 degrees hyperextension of the MTP joint, and 20 degrees flexion of the interphalangeal
(IP) joint. Dr. Gardner found that 25 degrees extension of the MTP joint yielded two percent
impairment and 20 degrees flexion of the IP joint yielded two percent impairment according to
Table 16-17 of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).4 For the right great toe, he measured 45 degrees
flexion of the MTP joint, which yielded no impairment, 25 degrees hyperextension of the MTP
joint, which yielded two percent impairment, and 40 degrees flexion of the IP joint, which yielded
no impairment. Dr. Gardner noted that the A.M.A., Guides provided that the diagnosis-based
impairment (DBI) method was preferred over ROM for calculating impairment and that ROM
measurements were used as an adjustment factor. He found hyperesthesia of the left sacral
superficial peroneal nerve with full strength of the lower extremities. Dr. Gardner opined that
appellant had reached maximum medical improvement (MMI). Using the foot and ankle regional
grid set forth in Table 16-2 on page 507, he identified the diagnosis of the left lower extremity as
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

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

2

class 1 first MTP joint arthritis, which yielded a default value of five percent. For functional
history (GMFH), physical examination (GMPE), and clinical studies (GMCS), Dr. Gardner
applied grade modifiers of one to find no adjustment from the default value of five percent.
Regarding the right lower extremity, Dr. Gardner found that appellant had two percent
permanent impairment due to loss of ROM, noting that Table 16-2 provided no relevant diagnosis.
He concluded that she had five percent permanent impairment of the left lower extremity and two
percent permanent impairment of the right lower extremity.
On March 22, 2018 appellant filed a schedule award claim (Form CA-7).
On April 20, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), identified the diagnosis for the left lower extremity as residual
problems after hallux valgus surgery. For the right lower extremity, he opined that the A.M.A.,
Guides did not allow a rating for ROM for the diagnosis of residual problems with hallux valgus
deformity. Dr. Harris found that appellant had five percent permanent impairment due to residual
problems after hallux valgus surgery and two percent permanent impairment due to residual
problems due to a hallux valgus deformity using Table 16-2 on page 502 of the A.M.A., Guides.
He asserted that she had reached MMI on March 5, 2018.
On August 21, 2018 OWCP requested that Dr. Harris clarify whether appellant’s
impairment was for the toes, feet, or lower extremities.
In a supplemental report dated September 5, 2018, Dr. Harris advised that appellant had
two percent permanent impairment of the right lower extremity and five percent permanent
impairment of the left lower extremity.
By decision dated November 20, 2018, OWCP granted appellant a schedule award for five
percent permanent impairment of the left lower extremity and two percent permanent impairment
of the right lower extremity. The period of the award ran for 20.16 weeks from March 5 to
July 24, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulation,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the

5

Supra note 2.

6

20 C.F.R. § 10.404.

3

specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that the case is not in posture for decision.
In a March 5, 2018 report, Dr. Gardner measured ROM of the great toes and found
moderate tenderness to palpation of the left foot. Utilizing the diagnosis of class 1 first MTP joint
arthritis of the left foot under Table 16-2 on page 501, he found five percent permanent impairment
of the left lower extremity after applying grade modifiers. For the right lower extremity,
Dr. Gardner indicated that he could not rate the impairment using the DBI method as there was no
applicable diagnosis. He used ROM to find two percent permanent impairment of the right lower
extremity.

7
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

10

Id. at 494-531.

11

Id. 411.

12

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

13

See supra note 6 at Chapter 2.808.6(f) (March 2017).

4

Consistent with its procedures,14 OWCP properly referred the matter to a DMA for an
opinion regarding appellant’s permanent impairment in accordance with the sixth edition of the
A.M.A., Guides.15
In an April 20, 2018 report, Dr. Harris identified the applicable diagnosis for the left lower
extremity as status post hallux valgus surgery with residuals and for the right lower extremity as
hallux valgus deformity pursuant to Table 16-2 on page 502 of the A.M.A., Guides. He disagreed
with Dr. Gardner’s use of ROM to rate appellant’s right lower extremity impairment, noting that
Table 16-2 did not provide that such a diagnosis could be alternatively rated using the ROM
method. Dr. Harris found that she had five percent permanent impairment of the left lower
extremity due to residual problems after hallux valgus surgery and two percent permanent
impairment due to residuals problems due to a hallux valgus deformity using Table 16-2 on page
502 of the A.M.A., Guides. However, Table 16-2 on page 502 does not provide a specific
impairment rating for a hallux valgus deformity, and thus it is unclear what diagnosis he used in
reaching his impairment rating. Additionally, Dr. Harris failed to apply grade modifiers or the net
adjustment formula in determining the extent of permanent impairment as required by the A.M.A.,
Guides.16
The Board, consequently, will remand the case for the DMA to clarify his use of Table
16-2 and to apply grade modifiers in rating appellant’s permanent impairment of both lower
extremities.17 Following such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

Id.

15

J.J., Docket No. 18-1615 (issued March 5, 2019).

16

See section 16.3, A.M.A., Guides at 515-30; see also C.P., Docket No. 19-0151 (issued May 21, 2019).

17

See C.P., id.; D.G., Docket No. 17-0600 (issued July 5, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 24, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORATION SECURITY
ADMINISTRATION, Tucson, AZ, Employer
__________________________________________

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

Docket No. 07-310
Issued: September 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 15, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 31, 2006, with respect to an emotional
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition as a consequence
of his May 18, 2003 employment injury.
FACTUAL HISTORY
The case was before the Board on a prior appeal with respect to a wage-earning capacity
determination and an overpayment of compensation.1 Appellant sustained a lifting injury on
1

Docket No. 05-1973 (issued September 21, 2006).

May 18, 2003 that was accepted for aggravated low back strain and lumbar herniated disc. He
returned to a light-duty position, stopped working in October 2003, returned briefly to work in
February 2004 and then again stopped working. Appellant received compensation for temporary
total disability. The record indicated that appellant underwent back surgery on May 6, 2004.
Appellant filed a notice of recurrence of disability (Form CA-2a) on November 4, 2004,
checking a box for “medical treatment only.” He stated that he was having anxiety attacks. In a
report dated December 13, 2004, Dr. Glenn Marks, a psychologist, diagnosed adjustment
disorder with anxious features. He stated that appellant experienced panic attacks following
surgery, but these had subsided and the current diagnosis was adjustment disorder. Dr. Marks
stated: “It is highly probable that [appellant] experienced panic attacks as a result of his inability
to cope with the emotions associated with his diminished work capacity, but the underlying
contributing factor is difficulty adjusting to his medical condition.”
By decision dated December 23, 2004, the Office found that appellant had not established
an emotional condition causally related to the May 18, 2003 employment injury.
Appellant requested a review of the written record and submitted additional evidence. In
a report dated February 15, 2005, the attending family practitioner, Dr. Rinly Gecosala, provided
diagnoses that included anxiety, depression and panic attacks caused by chronic low back pain
and appellant’s “industrial claim.” He also stated that appellant’s psychiatric condition was
brought about by “uncertainty of his career as a result of his industrial injury.”
By decision dated May 6, 2005, the Office hearing representative affirmed the
December 23, 2004 Office decision. The hearing representative found that the medical evidence
did not contain a rationalized medical opinion establish a consequential emotional condition.
On September 2, 2005 appellant submitted a July 27, 2005 report from Dr. Marks, who
stated: “In [appellant’s] situation, the difficulty arose, not out of being terminated from his
position, but as a result of sustaining an injury in which it is no longer possible for him to work
in the industry in which he had been employed for over 30 years. This coupled with the ongoing
pain and uncertainty regarding his medical prognosis, contributed to experiences of panic and
heightened anxiety.” He further stated that appellant had a long-standing history of anxiety and
as he was predisposed towards anxiety, when faced with the above-mentioned circumstances he
responded with atypically high levels of anxiety. Dr. Marks discussed the diagnostic criteria for
adjustment disorder and stated that appellant met the criteria.
Appellant submitted additional medical reports from Dr. Gecosala. With respect to an
emotional condition, Dr. Gecosala included a diagnosis of anxiety and depression and stated that
it was secondary to the employment injury.
The Office found that the evidence was sufficient to require further development of the
evidence. Appellant was referred for a second opinion examination by Dr. Hunter Yost, a
psychiatrist. In a report dated April 21, 2006, Dr. Yost provided a history and results on
examination. He diagnosed anxiety disorder. Dr. Yost opined that the anxiety appeared to be
related to frustration in “dealing with the red tape and bureaucratic processes related to his
seeking entitlements” from the Office and Social Security Administration. In a report dated

2

June 15, 2006, Dr. Yost reviewed the results of psychological testing, stating that the results
confirmed appellant’s tendency to anxiety and vulnerability to substance abuse.
Dr. Yost was asked by the Office to submit a supplemental report. In a report dated
July 14, 2006, he stated that appellant had an underlying predisposition to anxiety, which was
“aggravated by his employment due to the fact that he reports he did not like the light duty that
he was given and he preferred more active duties.” Dr. Yost also opined that the condition was
exacerbated by dealings with appellant’s supervisor regarding obtaining benefits.
The Office again requested that Dr. Yost clarify his opinion regarding an emotional
condition and the employment injury. In a report dated August 23, 2006, Dr. Yost opined that
appellant’s anxiety disorder was not a direct and natural result of the accepted back injury. He
stated that appellant had a preexisting anxiety disorder and noted his previously mentioned
factors such as dealing with appellant’s supervisors, but found that the anxiety disorder was not a
direct and natural result of injuries to his back.
By decision dated August 31, 2006, the Office reviewed the case on its merits and denied
modification. The Office found that the weight of the evidence was represented by Dr. Yost.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.2
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.3
The Federal Employees’ Compensation Act provides that, if there is a 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 the examination.4 The
implementing regulation states that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.5

2

Albert F. Ranieri, 55 ECAB 598 (2004).

3

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321 (1999).

3

ANALYSIS
Appellant has alleged that he sustained an emotional condition as a consequence of his
accepted herniated disc and aggravated low back strain on May 18, 2003. Dr. Gecosala’s reports
are of limited probative value in this regard as he generally offered only a brief statement that
appellant had depression and anxiety related to the employment injury, without further
explanation.6
The psychologist Dr. Marks, however, provided a more detailed medical opinion. He
diagnosed adjustment disorder and explained why he believed it was causally related to the
employment injuries. Dr. Marks opined that appellant’s condition was causally related to his
inability to continue working in the airline industry, ongoing pain and uncertainty regarding his
medical prognosis. His report constitutes a rationalized medical opinion on the issue.7
On the other hand, the second opinion psychiatrist, Dr. Yost, opined that appellant’s
anxiety disorder was not causally related to the employment injury. He noted other factors that
are not related to the specific claim in this case and he offered an unequivocal opinion based on a
complete background that the emotional condition was not the direct and natural result of the
employment injury.
The Board finds that a conflict exists in the medical evidence with respect to the issue
presented. The case will be remanded to the Office to resolve the conflict in accord with
5 U.S.C. § 8123(a). After such development as the Office deems necessary, it should issue an
appropriate decision.
CONCLUSION
The case will be remanded for resolution of a conflict in the medical evidence on the
issue of whether appellant sustained an emotional condition as a consequence of his May 18,
2003 employment injuries.

6

See Debra L. Dillworth, 57 ECAB ____ (Docket No. 05-159, issued March 17, 2006) (opinions from a
physician briefly stating that appellant’s depression was caused in part by an employment-related knee injury were
not considered rationalized medical evidence).
7

See, e.g., Bobbie D. Daly, 53 ECAB 691 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ dated August 31, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0683
Issued: April 20, 2016

Case Submitted on the Record

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

On February 10, 2015 appellant filed a timely appeal from December 12, 2014 merit
decisions 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
Appellant, then a 61-year-old machinist supervisor, filed an occupational disease claim
(Form CA-2) on September 10, 2008 alleging bilateral hearing loss. OWCP accepted his claim
for bilateral sensorineural hearing loss on February 7, 2012.
This case has been before the Board on prior appeal. By decision dated June 20, 2013,3
the Board found that at the time of OWCP’s February 7, 2012 decision, the report from
Dr. Pappas, the second opinion physician, constituted the weight of the evidence and established
1

5 U.S.C. § 8101 et seq.

2

The Board notes that appellant submitted additional evidence to the record following OWCP’s December 12,
2014 decisions. The Board’s jurisdiction is limited to a review of the evidence which was before OWCP at the time
of its final review. 20 C.F.R. § 501(c).
3

Docket No. 13-316 (issued June 20, 2013).

that appellant did not have a ratable hearing loss. The Board also found that OWCP should have
requested that the district medical adviser address whether hearing aids should be authorized.
Furthermore, the Board found that OWCP had abused its discretion, in its November 1, 2012
decision, by refusing to reopen the case for further consideration of the merits regarding the issue
of ratability of appellant’s hearing loss, including review of the September 28, 2011 report of
Dr. J. Scott Robertson, a Board-certified otolaryngologist, and the October 9, 2012 letter from
audiologist Jennifer Smith, regarding the September 28, 2011 audiogram.
OWCP thereafter issued two decisions dated December 12, 2014. The first decision, was
labeled as an acceptance, and again accepted sensorineural bilateral hearing loss and thereafter
found that the medical evidence of record established that appellant would benefit from hearing
aids. The second decision dated December 12, 2014 was identified as a merit review. This
decision noted the Board’s prior remand of the case, but only made findings regarding the issue
of appellant’s entitlement to hearing aids, not the issue of ratability of appellant’s hearing loss.
OWCP mentioned in passing that appellant’s hearing loss had previously been determined to be
nonratable. OWCP disregarded the Board’s instructions in its June 20, 2013 decision to conduct
a merit review of the evidence regarding the ratability of appellant’s hearing loss, with
consideration of Dr. Robertson’s September 28, 2011 report. As the issue of ratability of
appellant’s hearing loss was before OWCP at the time of its December 12, 2014 decision,
appellant was entitled to a proper decision with findings of fact and a statement of reasons.4
The Board finds OWCP erred by failing to conduct a merit review regarding the ratability
of appellant’s hearing loss, pursuant to the Board’s June 20, 2013 instructions.

4

20 C.F.R. § 10.126.

2

IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of
Workers’ Compensation Programs be set aside and the case be remanded to OWCP for further
proceedings consistent with this order.
Issued: April 20, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Bern, NC, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1296
Issued: February 15, 2018

Case Submitted on the Record

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

JURISDICTION
On May 25, 2017 appellant, through his representative, filed a timely appeal from a
December 22, 2016 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 to consider the merits of the case.
On appeal appellant, through his representative, asserts that he has established total
disability for the period November 22, 2012 through August 6, 2013 or that, in the alternative, a
conflict in medical evidence has been created.

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 met his burden of proof to establish total disability for
work from November 22, 2012 through August 6, 2013.
FACTUAL HISTORY
On July 2, 2012 appellant, then a 52-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a herniated cervical disc due to factors of
his federal employment. He first became aware of his condition on December 3, 2003 and first
attributed his condition to factors of his federal employment on May 10, 2008. Appellant
reported that in late 2003 he was diagnosed with bulging discs at C5-6 and C6-7 and attributed
this condition to his federal employment. He noted an employment-related motor vehicle
accident on May 10, 2008 and thereafter alleged his work duties caused increased pain.3
Appellant described his duties as twisting, lifting, pushing, standing, sitting, bending, raising his
arms above his head, driving, and entering and exiting vehicles. He stopped work on
June 14, 2012.
By decision dated January 14, 2014, OWCP accepted appellant’s claim for temporary
aggravation of degeneration of cervical intervertebral disc.
On February 5, 2014 appellant filed a wage-loss compensation claim (Form CA-7) from
November 23, 2012 through September 5, 2013 and also a claim for a schedule award.
In letters dated February 10, 2014, OWCP requested additional medical evidence from
appellant supporting his claims for permanent impairment and wage-loss compensation. It
afforded him 30 days to respond.
Dr. Anthony Capobianco, an osteopath, completed a note on March 3, 2014 and opined
that appellant was totally disabled from November 23, 2012 through September 5, 2013 due to
aggravation of his cervical disc condition by his daily work duties.
Dr. Angelo Tellis, a Board-certified physiatrist, noted on March 3, 2014 that he treated
appellant from August 7, 2012 through May 13, 2013. He diagnosed bulging discs and opined
that appellant was totally disabled.
On March 5, 2014 appellant filed a second Form CA-7 on which he requested wage-loss
compensation from November 23, 2012 through September 15, 2013.
The employing
establishment indicated that appellant worked two hours a day commencing August 7, 2013.
On March 12, 2014 OWCP authorized compensation payment for 129.99 hours of lost
wages from August 7 through September 5, 2013.
3

Appellant has four prior claims. OWCP accepted a lumbar strain in 2001 in File No. xxxxxx488. It accepted
first dorsal compartment tenosynovitis in 2004 in File No. xxxxxx940. OWCP accepted a right medial meniscal tear
in 2006 in File No. xxxxxx302. On June 3, 2008 it accepted closed dislocation of cervical and thoracic vertebra due
to a motor vehicle accident; File No. xxxxxx260. These claims are not before the Board on the present appeal.

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In a letter dated March 14, 2014, OWCP requested additional medical evidence from
appellant supporting his claimed period of total disability from November 22, 2012 through
August 6, 2013. It afforded him 30 days to respond.
In a note dated April 5, 2013, Dr. Tellis indicated that he had treated appellant monthly
since August 7, 2012. He reported that appellant’s incapacity for work was unknown.
Dr. Capobianco completed a note on April 14, 2014 and asserted that appellant was
totally disabled from June 15, 2012 through September 5, 2013 to prevent further injury to his
cervical condition.
By decision dated April 25, 2014, OWCP denied appellant’s claim for compensation for
the period November 22, 2012 through August 6, 2013 finding that the medical evidence did not
contain a rationalized medical opinion establishing that appellant was totally disabled for the
period claimed. Appellant requested a review of the written record from OWCP’s Branch of
Hearings and Review on May 13, 2014.
Appellant submitted his treatment records from August 7, 2012 through June 5, 2013
establishing that he sought treatment on August 7, 9, 17, and 21, 2012. He also sought medical
treatment on September 5, 10, 18, and 24, 2012 as well as October 23, November 19, and
December 20, 2012. In 2013 appellant sought treatment on January 23, February 19, March 15,
May 13, and June 5, 2013.
On June 10, 2014 Dr. Capobianco opined that from June 15, 2012 through September 5,
2013 appellant was totally disabled for his position as a city letter carrier.
By decision dated December 17, 2014, OWCP’s hearing representative vacated the
April 25, 2014 decision and remanded the case for further medical development. She found that
Dr. Capobianco and Dr. Tellis did not provide medical reasoning in support of their conclusions
that appellant was totally disabled. The hearing representative also noted that Dr. Robert M.
Moore, a Board-certified orthopedic surgeon who acted as a second opinion physician prior to
acceptance of this claim, had failed to opine when a temporary aggravation had ceased and
whether appellant had disability prior to the date of his examination or the date he returned to
full duty. She remanded the case for an additional opinion by Dr. Moore addressing disability.
OWCP requested a supplemental report from Dr. Moore on December 30, 2014.
Dr. Moore provided a January 8, 2015 report in which he opined that appellant’s temporary
aggravation of cervical degenerative disc disease had ceased by the date of appellant’s return to
full duty on August 9, 2013. He was unable to determine the extent of appellant’s disability
from November 22, 2012 through August 8, 2013 due to the lack of medical records.
In a letter dated January 21, 2015, OWCP requested that appellant provide all physical
examination notes and tests results for the period November 22, 2012 through August 6, 2013. It
afforded him 30 days to respond.
Appellant provided additional treatment notes from Dr. Tellis. On August 7, 2012
Dr. Tellis had examined appellant due to chronic neck pain that increased over the past two to
three months with numbness in his left arm and dropping things. He recommended a cervical
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epidural injection.
Dr. Tellis performed the cervical epidural steroid injection on
August 9, 2012. On August 21, 2012 appellant saw Dr. Tellis for increased pain in his neck and
left arm. He reported that following the cervical epidural steroid injection on August 9, 2012 he
developed a stiff neck and increased pain down his left arm. Appellant sought emergency room
treatment and continued to have intense pain interfering with his sleeping. Dr. Tellis noted that
appellant’s pain was not under good control. In a note dated September 18, 2012, appellant
reported increased pain in his neck and left upper extremity over the last two weeks. On
October 23, 2012 he reported improvement compared to August and September. On
December 20, 2012 a note indicated that appellant had to be careful in his activity as he had a
more severe exacerbation pulling a vine off a tree at his home. On February 19, 2013 appellant
felt his pain was improving. In a May 13, 2013 note, appellant reported right arm pain, while his
left arm pain was improved.
Dr. Tellis completed a note on February 9, 2015 and indicated that he treated appellant
from August 7, 2012 through May 13, 2013. During that period of treatment he diagnosed
bulging discs at C5-6 and C6-7 with cervical radiculopathy. Dr. Tellis noted that appellant
received an epidural injection on August 9, 2012 which exacerbated his pain causing
incapacitation. He opined that appellant was totally disabled from August 7, 2012 through
May 13, 2013 due to numbness, weakness, and dropping things with his left arm.
On March 5, 2015 OWCP requested that Dr. Moore review the additional medical
evidence and address appellant’s disability for work from November 22, 2012 through
August 8, 2013. In a report dated March 12, 2015, Dr. Moore reviewed the physical findings
listed on Dr. Tellis’ December 20, 2012, February 19, and May 13, 2013 notes. He found that
based on these records there was no objective evidence to support disability for work due to
aggravation of degenerative disc disease from November 22, 2012 through August 8, 2013.
By decision dated March 18, 2015, OWCP denied appellant’s claim for compensation for
the period November 22, 2012 through August 6, 2013 finding that Dr. Moore’s report was
entitled to the weight of the medical evidence. Appellant requested an oral hearing on
March 30, 2015.
Appellant testified at the oral hearing on November 17, 2015 and asserted that he
experienced horrendous pain, severe constipation, and seizures due to the prescribed pain
medication. He testified that his daily activities were severely limited.
By decision dated January 29, 2016, OWCP’s hearing representative vacated OWCP’s
March 18, 2015 decision and remanded the case for further development of the medical evidence
by referral to Dr. Moore. She found that it was not evident that Dr. Moore considered medical
evidence other than the three reports from Dr. Tellis that he had noted.
On February 12, 2016 OWCP requested a supplemental report from Dr. Moore
addressing appellant’s disability from November 22, 2012 through August 6, 2013. It provided
additional medical documentation included in the record of evidence from Drs. Tellis and
Capobianco.

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In a report dated February 26, 2016, Dr. Moore reviewed the medical records and found
that there were no objective findings of total disability for the period November 22, 2012 through
August 6, 2013. He noted that he had not examined appellant during the period in question.
By decision dated March 17, 2016, OWCP denied appellant’s claim for compensation for
the period November 22, 2012 through August 6, 2013. Appellant requested an oral hearing on
April 1, 2016.
Appellant appeared at the oral hearing on November 8, 2016 and asserted that his
attending physicians represented the weight of the medical evidence as Dr. Moore did not have
an opportunity to examine him during the period November 22, 2012 through August 6, 2013.
By decision dated December 22, 2016, OWCP’s hearing representative found that
appellant had not established disability for work from November 22, 2012 through August 6,
2013 as the medical evidence of record did not establish that appellant was totally disabled
during the period in question.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.5 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurts too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.8 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of

4

5 U.S.C. §§ 8101-8193.

5

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

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disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.9
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.11 Neither the fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for work from November 22, 2012 through August 6, 2013.
OWCP accepted appellant’s claim for temporary aggravation of degeneration of cervical
intervertebral disc. Appellant filed a series of CA-7 forms requesting wage-loss compensation
for total disability for the period November 22, 2012 through August 6, 2013.
In support his claimed period of disability, appellant submitted a series of notes and
reports from Drs. Capobianco and Tellis. On December 20, 2012 Dr. Capobianco noted that
appellant had periods of acute incapacitation, but did not provide any dates of disability. In a
note dated April 4, 2013, he indicated that appellant was disabled, but again failed to provide a
period of disability. On June 22, 2013 Dr. Capobianco released appellant to work two hours a
day. In notes dated September 2, 2013, March 3, and April 14, 2014, he opined that appellant
was totally disabled from November 23, 2012 through September 5, 2013 due to aggravation of
his cervical disc condition by his daily work duties. Dr. Capobianco indicated that appellant’s
disability from work was to prevent further injury to his cervical condition. None of these
reports provide any specific findings on examination or medical reasoning to support his opinion
that appellant was disabled for work. As Dr. Capobianco provided no objective findings in
support of appellant’s total disability for work and no medical reasoning supporting his opinions
on disability his reports are insufficient to meet appellant’s burden of proof to establish total
disability for the period November 22, 2012 through August 6, 2013.13 A medical report must
9

Id.

10

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

11

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

12

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

13

P.W., Docket No. 17-0154 (issued June 9, 2017).

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include rationale explaining how the physician reached his conclusion regarding disability.14 As
these reports lack the requisite medical rationale, they are insufficient to meet appellant’s burden
of proof.
Dr. Tellis also provided a series of notes and reports addressing appellant’s disability for
work. On March 3, 2014 he noted that he treated appellant from August 7, 2012 through
May 13, 2013 and found that appellant was totally disabled. In a note dated April 5, 2013,
Dr. Tellis reported that appellant’s incapacity for work was unknown. On August 21, 2012 he
noted that appellant’s pain was not under good control. On December 20, 2012 Dr. Tellis
indicated that appellant had to be careful in his activity and experienced a more severe
exacerbation pulling a vine off a tree at his home. In a note dated February 9, 2015, he opined
that appellant was totally disabled from August 7, 2012 through May 13, 2013 due to numbness,
weakness, and dropping things with his left arm. For each period of disability claimed, the
employee has the burden of proof to establish that he or she was disabled for work as a result of
the accepted work injury.15 Dr. Tellis did not provide clear physical findings supporting
appellant’s disability for work during the period in question and did not provide any rationale
explaining how or why appellant’s limitations resulted from his accepted injury.16 The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to the employment injury and
supports that conclusion with sound medical reasoning.17
OWCP referred appellant for a second opinion evaluation, with Dr. Moore and requested
two supplemental reports from him addressing appellant’s claimed period of disability for work.
Dr. Moore provided a report dated January 8, 2015 and opined that appellant’s temporary
aggravation of cervical degenerative disc disease had ceased by the date of his return to full duty
on August 9, 2013. He reviewed the physical findings listed in the medical records from
Drs. Capobianco and Tellis. Dr. Moore found that there were no objective findings for the
period November 22, 2012 through August 6, 2013 to support appellant’s claim for total
disability for this period. The Board finds that the reports of Dr. Moore are sufficiently
rationalized on the issue of total disability as he had a correct history of injury, has fully
reviewed the physical findings which were contemporaneous with the dates of alleged total
disability, and provided a detailed explanation of why he opines that appellant was not totally
disabled as alleged. Therefore the weight of the medical evidence is found to be with Dr. Moore
who opined that appellant did not have total disability for work during the claimed period. It is
appellant’s burden of proof to establish a specific period of work-related disability. The Board
has long held that medical conclusions unsupported by rationale are of diminished probative
value.18 None of the medical reports explain, with sufficient rationale, how his accepted
14

J.I., Docket No. 17-0485 (issued June 22, 2017).

15

Id.

16

Supra note 13.

17

Supra note 14.

18

Supra note 13.

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conditions caused him to be disabled for work from November 22, 2012 through August 6, 2013.
The Board finds that appellant did not meet his burden of proof in this case.
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 total disability
for work from November 22, 2012 through August 6, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2018
Washington, DC

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

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

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

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