United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, HODGE PARK
CARRIER ANNEX, Kansas City, MO, Employer
__________________________________________

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

Docket No. 19-1930
Issued: January 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 17, 2019 appellant, through counsel, filed a timely appeal from a June 28,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 a neck, back, rib,
shoulder, or wrist condition causally related to the accepted November 25, 2018 employment
incident.
FACTUAL HISTORY
On November 26, 2018 appellant, then a 48-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on November 25, 2018 she suffered a left neck
strain when her vehicle slid off the road and parcels slid within the vehicle striking her left side
while in the performance of duty. On the reverse side of the claim form the employing
establishment acknowledged that she was injured in the performance of duty. Appellant stopped
work on November 26, 2018 and returned to work on November 28, 2018.
In a November 26, 2018 supplemental statement, appellant explained that on
November 25, 2018 she lost control of her work vehicle while driving over ice. She reported that,
as she lost control of the vehicle, it landed sideways in bushes covered with snow. Appellant
indicated that she called the police who arrived to the scene 25 minutes later. She stated that they
assisted her in climbing out of the vehicle and that she was transported to the hospital.
November 25, 2018 hospital discharge notes signed by Natalie Bazalgette, a physician
assistant, noted that appellant was seen for a cervical strain, back pain, and rib pain following a
motor vehicle collision on even date.
In a November 25, 2018 work excuse note, a physician with an illegible signature
confirmed that appellant was seen for an appointment and could return to work without restrictions
on November 29, 2018.
An authorization for examination and/or treatment (Form CA-16) dated November 26,
2018 from the employing establishment indicated that appellant was authorized to receive medical
treatment for neck strain at St. Mary’s Hospital.
In a November 30, 2018 development letter, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of medical evidence
needed, including a medical opinion from a qualified physician as to how the employment incident
caused or aggravated a diagnosed condition. OWCP afforded appellant 30 days to submit the
necessary evidence.
Appellant submitted hospital discharge notes, dated December 2, 2018, from
Ms. Bazalgette.
In a December 2, 2018 work excuse note, a physician with an illegible signature noted that
appellant could return to light-duty work on December 9, 2018 and could return to full-duty work
on December 16, 2018.
In a December 11, 2018 report, Dr. Dorothy Jennings, an osteopath specializing in family
medicine, noted that appellant injured her neck, back, right shoulder, and right hand after losing
2

control of her work vehicle on an icy road. She examined appellant and diagnosed a right rotator
cuff injury, a right wrist sprain, a back strain, and a neck strain. In an accompanying work activity
status report, Dr. Jennings listed appellant’s work restrictions and indicated that appellant could
return to work on December 11, 2018. She referred appellant for physical therapy treatment.
In a December 14, 2018 report, Dr. Jennings diagnosed a right rotator cuff injury, a right
wrist sprain, a back strain, and a neck strain. In an accompanying work activity status report, she
listed appellant’s work restrictions and indicated that appellant could return to work on
December 14, 2018.
Appellant submitted
through 20, 2018.

physical

therapy

treatment

notes

dated

December

11

In a December 20, 2018 report, a nurse practitioner examined appellant and diagnosed a
right rotator cuff injury, a neck strain, a back strain, and a right wrist sprain. In an accompanying
work activity status report, she listed appellant’s work restrictions and indicated that appellant
could return to work on December 20, 2018.
In a December 26, 2018 work activity status report, Dr. Michael Khadavi, a Board-certified
specialist in physical medicine, diagnosed a right rotator cuff injury and a lower back strain. He
also listed appellant’s work restrictions.
In a January 2, 2019 work activity status report, Dr. Khadavi diagnosed a right wrist sprain
and a right rotator cuff injury and listed appellant’s work restrictions.
By decision dated January 2, 2019, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence of record was insufficient to establish a causal relationship
between her diagnosed conditions and the accepted November 25, 2018 employment incident.
In a December 3, 2018 report, Dr. Mark Ditzenberger, a chiropractor, reviewed x-rays of
appellant’s spine and diagnosed a sprain of the cervical spine, subluxation of the cervical spine, a
sprain of the thoracic spine, subluxation of the thoracic spine, a sprain of the lumbar spine,
subluxation of the lumbar spine, a sprain of the pelvis, subluxation of the pelvis, and a sprain of
the right shoulder.
In a December 7, 2018 work excuse note, a physician with an illegible signature noted that
appellant could return to work on December 12, 2018.
In a December 26, 2018 report, Dr. Khadavi noted that appellant was experiencing right
shoulder pain that began on November 25, 2018 after the vehicle she was driving flipped on its
side. He reported her complaints of pain in the right shoulder, back, ribs, wrist, and neck.
Dr. Khadavi examined appellant and reviewed an x-ray of her right shoulder. He indicated that
her pain was most consistent with a full-thickness right rotator cuff tear or a partial-thickness right
rotator cuff tear and a discogenic back injury and radiculitis radiating around the rib cage.
In a January 2, 2019 narrative statement, appellant clarified that, in addition to her wrist
and shoulder pain, she was experiencing pain in her back, neck, ribs, right leg, and right wrist.

3

In a January 2, 2019 report, Dr. Khadavi noted that appellant was still experiencing
shoulder, back, rib, and right wrist pain. He diagnosed likely wrist sprain or scapholunate partial
tear, likely full-thickness right rotator cuff tear or a partial-thickness right rotator cuff tear, and
back pain with radiculitis radiating around the rib cage.
A January 8, 2019 magnetic resonance imaging (MRI) scan of appellant’s right shoulder
revealed supraspinatus tendinosis with a superimposed small intrasubstance tear of the mid fibers
and mild acromioclavicular joint osteoarthritis. It showed no full-thickness rotator cuff tear. A
thoracic spine MRI scan of the same date revealed mild degenerative disc disease in the thoracic
spine and a probable cyst in the right kidney.
A January 9, 2019 MRI scan of appellant’s right wrist revealed probable complex tear of
the scapholunate ligament, a small ganglion cyst volar to the distal radius, and degenerative cyst
formation involving the proximal pole scaphoid with associated mild sclerosis.
In a January 16, 2019 report, Dr. Khadavi indicated that appellant’s right shoulder pain had
not improved. He noted that she also had right wrist and back pain. Dr. Khadavi diagnosed a
partial rotator cuff tear, a partial scapholunate ligament tear, and a likely facet joint sprain. He
performed right radiocarpal and subacromial bursa injections and ordered physical therapy
treatment. In an accompanying work activity status report, Dr. Khadavi listed appellant’s work
restrictions.
In an undated attending physician’s report (Form CA-20), a physician with an illegible
signature diagnosed scapholunate ligament tear and rotator cuff tear and checked a box marked
“yes” indicating that the diagnosed conditions were caused or aggravated by an employment
activity.
On January 18, 2019 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a February 6, 2019 report, Dr. Khadavi indicated that, since he last saw her, appellant’s
right shoulder was 50 percent improved and her right wrist was 98 percent improved. He
diagnosed a partial right rotator cuff tear. Dr. Khadavi recommended continued physical therapy
treatment. In an accompanying work activity status report, he listed appellant’s work restrictions.
In a March 13, 2019 report, Dr. Khadavi noted that appellant’s wrist pain was improved,
but she was still experiencing right shoulder and back pain. He diagnosed a strain of the lower
back and recommended continued physical therapy treatment.
A telephonic hearing was held on May 15, 2019. At the hearing, appellant testified that
she had not been treated for her rib or back pain and that she was still experiencing pain throughout
her right arm. The hearing representative held the record open for 30 days for the submission of
additional evidence.
November 25, 2018 x-rays of appellant’s cervical spine, lumbar spine, chest, and left ribs
revealed no fractures or listhesis. They showed straightening of the cervical spine, which may
have been positional or due to muscle spasm.

4

In a November 25, 2018 report, Dr. Dinesh J. Patel, a general medical practitioner, noted
that appellant presented with neck pain, left rib pain, and lower back pain after sliding on ice in
her work vehicle. He reviewed x-rays of her cervical spine, lumbar spine, chest, and left ribs and
diagnosed a cervical strain, back pain, and rib pain.
December 2, 2018 x-rays of appellant’s right lower leg, thoracic spine, right wrist, and
sacrum revealed no significant abnormalities. X-rays of her right shoulder revealed evidence of
chronic rotator cuff pathology and mild acromioclavicular joint disease.
In a December 2, 2018 report, Dr. Robert Henley, a Board-certified specialist in internal
medicine, noted that appellant was experiencing pain in the right side of her body after her work
vehicle flipped on its side. He reviewed x-rays of her right lower leg, thoracic spine, right wrist,
sacrum, and right shoulder and diagnosed back pain, bilateral contusion of the ribs, leg pain,
shoulder pain, and a wrist sprain.
By decision dated June 28, 2019, OWCP’s hearing representative affirmed the January 2,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8

3

Id.

4

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5
M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.10
Under section 8101(2) of FECA, chiropractors are only considered physicians to the extent
that they treat spinal subluxations as demonstrated by x-ray to exist.11 OWCP’s regulation
provides that reimbursable chiropractic services are limited to physical examinations (and related
laboratory tests), x-rays performed to diagnose a subluxation of the spine, and treatment consisting
of manual manipulation of the spine to correct a subluxation.12
ANALYSIS
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,13 the Board held that, when adjudicating a claim,
OWCP is obligated to consider all evidence properly submitted by a claimant and received by
OWCP before the final decision is issued.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that the documents, which appellant submitted, were not properly or fully reviewed
by OWCP in its June 28, 2019 decision. OWCP erroneously determined that it could not evaluate
reports from Dr. Khadavi because they were unsigned. The Board finds that his reports, dated
December 26, 2018 through March 13, 2019, were electronically signed, and he can be properly
identified as a physician under FECA.14 As such, they are subject to review. Additionally,
OWCP’s June 28, 2019 decision failed to reference or address reports from Drs. Patel, Henley,
and Ditzenberger, dated November 25 and December 2 and 3, 2018 respectively. It further failed
to reference or address physical therapy treatment notes, dated December 11 through 20, 2018,
and reports from a physician assistant and a nurse practitioner.
It is crucial that OWCP address all evidence received prior to the issuance of its final
decision, as the Board’s decisions are final with regard to the subject matter appealed.15 The Board
finds that this case is not in posture for decision as OWCP did not review the above-noted evidence

9

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

5 U.S.C. § 8101(2); see D.J., Docket No. 19-1494 (issued March 11, 2020).

12

20 C.F.R. § 10.5(o).

13

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

14

T.W., Docket No. 17-1819 (issued March 14, 2018).

15
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 13.

6

in its June 28, 2019 decision.16 On remand OWCP shall review all evidence of record, and
following any further development as it deems necessary, it shall issue an appropriate decision.17
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further action
consistent with this decision of the Board.
Issued: January 8, 2021
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

16

See V.C., Docket No. 16-0694 (issued August 19, 2016).

17

The Board notes that the employing establishment issued a Form CA-16. A properly completed CA-16 form
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
L.F., supra note 9; Tracy P. Spillane, 54 ECAB 608 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Memphis, TN, Employer
__________________________________________

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

Docket No. 16-0185
Issued: April 6, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant timely appealed an August 20, 2015 merit decision and
an October 19, 2015 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has established right knee arthritis causally related
to factors of his federal employment; and (2) whether OWCP properly denied reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 58-year-old retired motor vehicle operator, filed an occupational disease
claim (Form CA-2) for right knee arthritis, which he alleges arose on or about April 29, 2015.
1

5 U.S.C. § 8101 et seq.

He previously injured his left lower extremity in the performance of duty on July 3, 1992.
Appellant worked as a welder at the time of his first injury. OWCP accepted his 1992 injury for
left knee sprain (OWCP File No. xxxxxx701).2 Appellant also has an accepted claim for left
knee bursitis, which arose on or about September 26, 2001 (OWCP File No. xxxxxx599).3 He
retired from the employing establishment effective April 1, 2014. Appellant attributed his
current right knee complaints to operating semi-trailer trucks with manual and automatic
transmissions and using his legs to climb in and out of vehicles. OWCP combined his three
lower extremity injuries and designated the July 3, 1992 traumatic injury claim (OWCP File No.
xxxxxx701) as the master file.
In an April 29, 2015 report, Dr. John W. Ellis, a Board-certified family practitioner,
diagnosed left knee lateral collateral ligament sprain and bilateral knee traumatic arthritis. He
noted that appellant initially injured his left knee in a July 3, 1992 work-related fall. Dr. Ellis
described it as an acute injury that strained the ligaments of appellant’s left knee. He noted that
appellant continued to have left knee instability since his 1992 injury. Dr. Ellis further noted that
the laxity of the ligaments caused abnormal biomechanical stresses on the left knee, which
injured the cartilage, caused chondromalacia, and ultimately resulted in traumatic arthritis of the
bone in the left knee. Additionally, he indicated that increased instability of the left knee caused
abnormal stresses on appellant’s right knee, which resulted in consequential traumatic arthritis in
the right knee. Dr. Ellis also noted that appellant continued working until April 1, 2014 as a
truck driver, which required him to get in and out of large semi-trucks. He explained that this
would have caused greater strains on the right knee and made it more prone to developing the
right knee arthritis and chondromalacia found on the current examination.
Dr. Ellis indicated that it would be medically reasonable for appellant’s right knee to be a
consequential injury to his left knee. However, he noted that the right knee was also injured as a
result of appellant’s heavy workload, especially getting out of trucks, which caused traumatic
arthritis. Dr. Ellis explained that appellant was more prone to developing this condition in the
left knee, but getting in and out of trucks and sometimes unloading trucks also contributed to the
traumatic arthritis in his right knee.
In a July 29, 2015 statement, the employing establishment indicated that beginning in
September 2011, appellant had a modified assignment due to a previous hand/wrist injury. His
duties involved picking up parts and supplies. According to the employing establishment,
appellant would drive a pickup or a stake body truck twice a week to get supplies. He reportedly
did not have to climb onto the back of the truck. The employing establishment further indicated
that appellant’s supervisors were aware of issues he had with his back and did not require him to
do any unnecessary climbing. Appellant’s supervisors reportedly encouraged him to take extra
breaks and rest stops when driving long distances. Appellant did not climb ladders while in this
modified position. Lastly, the employing establishment indicated that getting in and out of
2

Appellant ultimately resumed his regular duties as a welder and was discharged from treatment on
June 10, 1993. Follow-up treatment notes from May 15, 1995 indicated that his then-current left knee physical
examination was “completely normal.” Appellant’s x-rays were similarly “normal.”
3

Dr. Riley Jones, a Board-certified orthopedic surgeon, released appellant to resume his regular duties, effective
June 14, 2002.

2

vehicles would have been appellant’s only physical requirement.4 When he was not driving,
appellant answered the telephone and filed/organized papers.
The employing establishment challenged appellant’s claim based on causal relationship.
It argued that his right knee arthritis could be age related. The employing establishment also
surmised that appellant could have injured his right knee since his April 2014 retirement.
In an August 20, 2015 decision, OWCP denied appellant’s claim based on his failure to
establish causal relationship. It found that Dr. Ellis’ opinion was insufficient to establish either a
consequential injury or a separate occupational disease.
Appellant timely requested reconsideration by letter dated September 21, 2015 and
received September 25, 2015. He took issue with the employing establishment’s characterization
of his former duties as a motor vehicle operator. Appellant also submitted a statement from a
retired supervisor who described the types of vehicles appellant operated between 2005 and
2007.
By decision dated October 19, 2015, OWCP denied appellant’s request for
reconsideration without a merit review.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 diagnosed condition is causally related to the
identified employment factors.6

4

When operating a pickup, appellant had to step approximately 10 to 12 inches from the ground to enter the
vehicle. Accessing the stake body truck’s cabin was a two-step process. The initial step from the ground was
approximately 15 inches, followed by a second step of approximately 8 inches to get inside the truck.
5

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). 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
factors. Id.
6

Victor J. Woodhams, id.

3

When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional misconduct.7 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.8
ANALYSIS -- ISSUE 1
Dr. Ellis opined that appellant’s right knee arthritis was a consequence of his 1992
employment-related left knee injury, as well as a result of his subsequent duties as a truck driver.
With respect to the consequential injury, he noted that appellant had left knee instability since his
1992 injury, which caused abnormal stress on the right knee resulting in arthritis. Prior to his
own April 29, 2015 examination, the most recent left knee medical evidence Dr. Ellis reviewed
was a May 15, 1995 treatment record, which indicated that appellant’s x-rays were “normal” and
his left knee physical examination was “completely normal.” This particular evidence calls into
question Dr. Ellis’ opinion, as the physician did not identify any other medical evidence to
support his assertion that appellant had ongoing left knee instability since his July 3, 1992 injury.
Dr. Ellis’ finding that appellant’s right knee arthritis was related to his duties as a truck
driver is similarly deficient. He indicated that getting in and out of large semi-trucks would have
placed greater strain on appellant’s right knee making it more prone to developing arthritis and
chondromalacia. Dr. Ellis further indicated that unloading trucks also contributed to appellant’s
right knee arthritis. Although he exhibited some familiarity with appellant’s duties as a truck
driver, Dr. Ellis appears to have been unaware of appellant’s modified assignment beginning in
September 2011. The employing establishment indicated that appellant drove twice a week, and
operated a pickup or a stake body truck.
A physician’s opinion on causal relationship must be based on a complete factual and
medical background.9 In this instance, Dr. Ellis did not identify any evidence of ongoing left
knee ligament laxity and/or instability, and he was not aware of appellant’s modified assignment
employment duties. Accordingly, the Board finds that the medical evidence of record fails to
establish that appellant’s claimed right knee arthritis is employment related.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.10 OWCP has discretionary authority in this regard and has imposed certain

7

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation
10-1 (2006).
8

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

9

Victor J. Woodhams, supra note 5.

10

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).

4

limitations in exercising its authority.11 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.12 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.13 When a timely application for reconsideration does not meet
at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
OWCP received appellant’s September 21, 2015 request for reconsideration on
September 25, 2015. Appellant submitted the appeal request form that accompanied the
August 20, merit decision, as well as a brief statement challenging the employing
establishment’s description of his duties as a motor vehicle operator. He believed that the
employing establishment omitted important details regarding his duties prior to September 2011.
The Board finds that appellant’s September 21, 2015 request for reconsideration neither alleged,
nor demonstrated, that OWCP erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance any relevant legal arguments not previously considered
by OWCP. Accordingly, he is not entitled to a review of the merits based on the first and second
requirements under section 10.606(b)(3).15
Appellant also failed to submit any “relevant and pertinent new evidence” with his
September 21, 2015 request for reconsideration. OWCP denied his claim for failing to establish
causal relationship, which is a medical issue that generally requires rationalized medical opinion
evidence.16 Appellant did not submit any new medical evidence on reconsideration. Although
the supervisor’s statement regarding appellant’s duties is new to the record, it is not relevant and
pertinent to the issue on reconsideration. Because appellant did not provide any “relevant and
pertinent new evidence,” he is not entitled to a review of the merits based on the third

11

20 C.F.R. § 10.607.

12

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of the OWCP decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
13

Id. at § 10.606(b)(3).

14

Id. at §§ 10.607(b), 10.608(b).

15

Id. at § 10.606(b)(3)(i) and (ii).

16

Robert G. Morris, supra note 5.

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requirement under section 10.606(b)(3).17 Accordingly, OWCP properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
Appellant failed to establish right knee arthritis causally related to factors of his federal
employment. The Board further finds that OWCP properly denied his September 21, 2015
request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 19 and August 20, 2015 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 6, 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

17

20 C.F.R. § 10.606(b)(3)(iii).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Attica, MI, Employer
__________________________________________

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

Docket No. 18-1136
Issued: January 7, 2019

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 15, 2018 appellant, through counsel, filed a timely appeal from an April 26, 2018
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 that her right hip
condition was causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 15, 2017 appellant, then a 51-year-old sales and service associate/distribution
clerk, filed an occupational disease claim (Form CA-2) alleging that she developed pain in her
right hip and lower back, and arthritis in her right hip while in the performance of duty.3 She
alleged that she first became aware of her claimed conditions and of their relationship to her federal
employment on November 2, 2016. She did not stop work.
In an accompanying narrative statement, appellant noted that she had previously filed
claims for left knee and lower back injuries. She indicated that consistent with all of her prior
arthritic issues, her right hip/side was overcompensating for these injuries as she walked and
worked. Appellant’s right hip started to bother her in March 2016 while she was having left knee
trouble. Her right hip became extremely sore on August 1, 2016. Appellant described her work
duties as working six days a week and distributing mail from large equipment to several carrier
divisions, about two hours a day. Appellant also lifted, twisted, and turned to sort approximately
700 parcels in various locations within 15 feet of breaking them down on a daily basis. She lifted
bags of parcels that weighed up to 60 pounds and single parcels that weighed up to 70 pounds.
Appellant moved heavy wheeled equipment full of mail weighing up to 250 pounds and lifted tubs
of mail weighing up to 45 pounds. She continuously bent and walked between various hampers
and from the front to the back of the office to retrieve hold mail and notiﬁed parcels. Appellant
stood at a counter line processing mail and accepting parcels of various lengths, sizes, and weight
for approximately six hours on a daily basis. On approximately August 1, 2016 her right hip
became extremely sore and she had very limited mobility such that she could not stand for any
length of time and her gait was off. She sought medical treatment and an x-ray revealed joint
narrowing and sclerosis in her right hip. Subsequently, on January 3, 2017 she received an
injection in the right hip performed by Dr. Norman E. Walter, an attending Board-certified
orthopedic surgeon.
In support of her claim, appellant submitted an August 15, 2016 pelvis and bilateral hip xray report from Dr. Leighton Lum, a radiologist. Dr. Lum provided an impression of mild
degenerative osteoarthritis of both hips.
OWCP, by development letter dated February 22, 2017, advised appellant of the
deficiencies of her claim and afforded her 30 days to submit additional medical evidence, including
a detailed narrative report from her physician which included a history of the injury and a medical
explanation with objective evidence of how the reported work events caused or aggravated her

3

Appellant had filed prior claims before OWCP. These claims include OWCP File No. xxxxxx152, OWCP File
No. xxxxxx575, and OWCP File No. xxxxxx095 for left knee injuries and OWCP File No. xxxxxx895 for a back
injury. These claims have been combined with OWCP File No. xxxxxx152 serving as the master file. The current
claim has not been combined with the prior claims.

2

condition. It also requested that the employing establishment submit medical evidence, if appellant
had been treated at its medical facility.
In an undated narrative statement, appellant again related her history of injury. In 2005,
she sustained a left knee injury at work and since that time she struggled with arthritis in her knees,
hips, and lower back. Appellant continued to work and was treated by Dr. Walter. In late 2015,
she again experienced left knee pain for which she scheduled surgery. During this same time,
appellant’s right hip became immobile and she struggled to walk, bend, lift her leg in and out of a
car or shower, and walk up and down stairs. She noted the proposed medical treatment for her
knees and right hip.
Appellant submitted reports dated December 22, 2016 and February 1, 2017 from
Dr. Walter. In these reports, Dr. Walter noted that he had reviewed appellant’s social, family, and
surgical history. He also noted her complaints of pain in her hip and back, and difﬁculty externally
rotating the hip. Dr. Walter reviewed outside films brought by appellant, which showed 50 percent
narrowing in the hip. He maintained that this was the main source of her problem as documented
on internal and external rotation. Dr. Walter prescribed pain medication to treat appellant’s hip
condition.
In response to OWCP’s development letter, appellant requested a 30-day extension to
submit a report from Dr. Walter regarding the causal relationship between her right hip condition
and current work activities. No additional evidence was received by OWCP.
By decision dated March 27, 2017, OWCP denied appellant’s occupational disease claim
for failure to establish that the event occurred as alleged.
Appellant requested reconsideration on May 18, 2017. She submitted an April 27, 2017
report from Dr. Walter who related a history of his own treatment of appellant commencing on
May 20, 2010 for a left knee injury she sustained after her prior work injury. Dr. Walter noted that
he evaluated her on December 22, 2016, and February 1 and April 12, 2017 regarding her
complaints of pain in her right hip and groin. On April 12, 2017 he reviewed x-rays which showed
signiﬁcant arthritis in the right hip. Appellant reported to him that her pain was due to problems
she had with her opposite knee because she was limping badly and had an altered gait. Dr. Walter
performed an injection and advised appellant that her right hip condition may be related to the
altered gait she developed due to her left knee condition. He noted that the prolonged limping
aggravated the preexisting arthritis in her right hip and necessitated injection therapy.
By decision dated August 14, 2017, OWCP affirmed its March 27, 2017 decision, as
modified. It found that appellant had established fact of injury as she had substantiated the
implicated employment factors. However, the claim remained denied because the medical
evidence of record was insufficient to establish that appellant’s diagnosed right hip condition was
caused or contributed to by the accepted employment factors. OWCP noted that, based on
Dr. Walter’s April 27, 2017 report, appellant should pursue the argument that her right hip
condition was a consequence of the accepted left knee condition under that claim.
On April 11, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence from Dr. Walter. In a March 7, 2018 letter, Dr. Walter reiterated the

3

history of his own treatment of appellant. He further noted her continuing left knee symptoms
since 2010 and severe back and right hip pain following her work-related knee injury. Dr. Walter
maintained that the back pain and right hip joint space narrowing (osteoarthritis), which required
appellant to undergo a right total hip arthroplasty, were directly correlated to her prior left knee
injuries which resulted in her having many years of an altered gait. He concluded that it was his
firm belief that appellant’s employment contributed to that and would continue to do so without
appropriate restrictions.
By decision dated April 26, 2018, OWCP denied modification of its prior decision. It
found that appellant failed to submit rationalized medical opinion evidence explaining how her
diagnosed right hip condition was caused or aggravated by the established work factors. OWCP
noted that, based on Dr. Walter’s March 7, 2018 report, she should seek expansion of the
acceptance of her left knee claim to include a consequential right hip injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
4

Supra note 2.

5

T.H., Docket No. 17-0747 (issued May 14, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

T.H., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).
7

Victor J. Woodhams, id.

8
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D. 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

4

whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed right hip condition was causally related to the accepted factors of her federal
employment.
Appellant submitted a series of reports from her physician, Dr. Walter. In reports dated
April 27, 2017 and March 7, 2018, Dr. Walter opined that appellant’s back pain and right hip
osteoarthritis were caused by her prior work-related left knee injuries. As Dr. Walter related
appellant’s diagnosed conditions to prior employment injuries, his opinion is insufficient to
establish that she sustained back and right hip conditions due to the accepted employment factors.11
His remaining reports dated December 22, 2016 and February 1, 2017 found that appellant’s right
hip condition was caused by 50 percent narrowing in the hip as demonstrated by x-rays. However,
Dr. Walter failed to provide a firm diagnosis or specifically attribute a condition to the accepted
employment factors. Without a firm diagnosis supported by medical rationale, his opinion is of
little probative value.12 For the reasons set forth, the Board finds that Dr. Walter’s reports are of
insufficient probative value to meet appellant’s burden of proof.
The diagnostic study report of record from Dr. Lum is of limited probative value. The
Board has held that reports of diagnostic tests lack probative value as they do not provide an
opinion on causal relationship between appellant’s employment duties and a diagnosed
condition.13 The Board finds, therefore, that this evidence is insufficient to establish appellant’s
claim.
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish a right hip injury causally related to the accepted employment factors.
Appellant therefore has not met her burden of proof.
On appeal counsel contends that OWCP’s April 26, 2018 decision is contrary to fact and
law. For the reasons set forth above, the Board finds that the weight of the medical evidence of
record does not establish that appellant’s right hip condition was caused or contributed to by the
accepted employment factors.

9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 6.

11

J.M., Docket No. 07-0974 (issued December 12, 2007).

12

See Samuel Senkow, 50 ECAB 370 (1999).

13

See K.V., Docket No. 18-0723 (issued November 9, 2016).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
hip condition was causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 7, 2019
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
PRINTING SERVICE DETACHMENT
OFFICE, Lakehurst, NJ, Employer
__________________________________________

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

Docket No. 16-1026
Issued: July 14, 2016

Case Submitted on the Record

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

JURISDICTION
On April 19, 2016 appellant, through counsel, filed a timely appeal from a December 1,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective May 12, 2015.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 1, 1994 appellant filed a traumatic injury claim (Form CA-1) alleging that
on October 28, 1994 she was exposed to toner that had been spilled.2 Appellant stopped work on
December 20, 1994 due to a reduction-in-force.3
OWCP accepted the claim on December 13, 1994 for iritis. After additional development
of the medical evidence, OWCP accepted the claim on July 15, 1996 for asthma with rhinitis as a
result of exposure to copier toner. The record indicates that appellant received compensation
benefits on the periodic roll as of June 16, 2002.
Through the years appellant continued to receive treatment by Dr. Robert P. Rabinowitz,
an osteopathic physician. In a report dated October 28, 2002 he related that appellant had been
seen in his office for a number of years for a prior history of occupational asthma secondary to
photocopy toner exposure. He noted that appellant was last seen on September 19, 2002 and had
not had any significant asthma symptoms in some time. He noted appellant’s diagnoses as
asthma, mild intermittent, presently well controlled; allergic rhinitis; history of occupationallyinduced asthma secondary to copier toner; and reflex sympathetic dystrophy (RSD).
Dr. Rabinowitz related that appellant had significant limitations in activity and ability to work
due to her RSD. He also noted that it would be difficult for appellant to find a job that did not
expose her to copier toner.
To determine the status of appellant’s accepted conditions, she was referred for a second
opinion examination by Dr. Brian Kerr, a Board-certified internist with a specialty in pulmonary
disease. In a report dated January 16, 2003, Dr. Kerr reported that appellant’s asthma, rhinitis,
and asthmatic bronchitis may not totally be resolved, as appellant may have episodic symptoms
based on exposures to nonspecific irritants. He noted that pulmonary function testing was
normal.
OWCP referred appellant for another second opinion examination in 2006 by Dr. JungSan Shen, a Board-certified internist with a subspecialty in pulmonary disease. In a report dated
August 29, 2006, Dr. Shen opined that appellant most likely had chronic bronchitis, rather than
bronchial asthma. He noted that pulmonary function tests (PFTs) were normal except for a mild
diffusion abnormality, and he did not feel there was a significant functional disability from the
employment incident. Dr. Shen indicated that appellant had other medical problems, such as
RSD, that were causing more problems than her pulmonary condition. Appellant continued to
receive compensation for wage loss.
Appellant’s treating physician, Dr. Rabinowitz, periodically submitted reports with
respect to appellant’s pulmonary condition.
In a report dated December 18, 2012,
2

The record indicates that appellant initially filed a claim for an injury on March 4, 1994. Appellant, then a 29year-old copier equipment operator, alleged she inhaled smoke and fumes from a copy machine. The claim was
accepted for an episode of asthmatic bronchitis, bilateral conjunctivitis, allergic rhinitis, sinusitis, and pharyngitis.
3

The Board notes that paper documents submitted to the record prior to 2002 were converted to scanned imaging
documents. However the record remains unclear as to periods that appellant did not work and received
compensation benefits.

2

Dr. Rabinowitz reported that appellant was doing well with her asthma but had mild dyspnea on
exertion. By report dated December 10, 2013, Dr. Rabinowitz reported that appellant’s asthma
was well controlled, and that she rarely if ever needed to use an inhaler. He indicated that
appellant should not be exposed to photocopier toner. Dr. Rabinowitz noted that appellant was
limited by her RSD symptoms, but this was not his area of expertise.
OWCP referred appellant for a second opinion pulmonary examination by Dr. Monroe
Karetzky, a Board-certified internist with a subspecialty in pulmonary disease. In a report dated
October 29, 2014, Dr. Karetzky provided a history, noting the two specific employment incidents
in 1994, and indicated that he had reviewed medical records. He noted that chest x-rays were
normal, all PFTs performed have demonstrated normal expiratory flow rates and FEV1/FVC
(forced expiratory volume after one second/forced vital capacity) ratios without a response to
bronchodilators when administered, a negative methacholine provocation test and clear lungs on
examination. Dr. Karetzky provided results on examination and reported the PFT results were
normal. He concluded, “there is an apparent lack of objective findings of respiratory impairment
on physical examination, chest x-ray or Pulmonary Function Testing. I therefore conclude with a
reasonable degree of medical probability that [appellant] has no lung disease and no
demonstrable objective evidence to support a pulmonary disability.” Dr. Karetzky indicated that
appellant’s regimen of nebulizers and inhalers was excessive and unnecessary, and she required
only a metered dose of inhaler periodically as needed without further pulmonary referral. He
concluded that there was no evidence of airway obstruction.
In addition, OWCP referred appellant for a second opinion examination from a Boardcertified ophthalmologist, Dr. Bruce Berg. In a report dated January 14, 2015, Dr. Berg provided
a history and results on examination. He reported a normal eye examination with no evidence of
permanent damage to the eyes or visual system.
By letter dated March 30, 2015, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits, based on the weight of the medical evidence.
It indicated that the case would be held open for 30 days to provide appellant and opportunity to
present additional evidence or argument.
Appellant submitted an April 23, 2015 report from Dr. Rabinowitz which indicated that
appellant’s asthma was stable as long as she was not exposed to photocopy toner or extreme
temperatures.
He asserted any of these individual triggers could induce symptoms.
Dr. Rabinowitz wrote that appellant “still maintains that her asthma is exacerbated by exposure
to significant amounts of photocopier toner,” and concluded that appellant would not be able to
return to work as a printer clerk due to the risk of exposure to toner.
By decision dated May 12, 2015, OWCP terminated compensation for wage-loss and
medical benefits. It found the weight of the medical evidence was represented by the second
opinion physicians, Drs. Karetzky and Berg.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on May 20, 2015. A hearing was held on September 11, 2015. Counsel argued that appellant’s
condition prevented her from returning to work and Dr. Karetzky acknowledged appellant
required an inhaler.

3

By decision dated December 1, 2015, the hearing representative affirmed the March 30,
2015 OWCP decision. The hearing representative found the weight of the medical evidence was
represented by the second opinion physicians and therefore OWCP had met its burden of proof
to terminate compensation.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.4 The right to medical
benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, OWCP must establish that appellant
no longer has residuals of an employment-related condition which require further medical
treatment.5
ANALYSIS
In the present case, OWCP accepted that appellant sustained asthma with rhinitis, and
iritis, as a result of exposure to photocopy toner on October 28, 1994. Appellant received
compensation for wage-loss and medical benefits following her work stoppage on
December 20, 1994. OWCP terminated compensation for both wage-loss and medical benefits
on May 12, 2015.
The Board finds that the weight of the medical evidence in this case is represented by the
second opinion physicians Drs. Karetzky and Berg. With respect to the asthma condition,
Dr. Karetzky provided a detailed October 29, 2014 report. After reviewing the history and
results on examination, he clearly and unequivocally found that appellant did not have a
continuing asthma or other respiratory condition. Dr. Karetzky discussed the results of
diagnostic tests, finding the diagnosis of asthma was not currently established based on physical
examination, chest x-ray and pulmonary function test results. He found no evidence of airway
obstruction or objective findings of respiratory impairment, and noted there were no
recommendations for continuing treatment. The Board finds Dr. Karetzky provided a
rationalized medical opinion that appellant did not have a continuing employment-related
respiratory condition.
With respect to an eye condition, Dr. Berg provided a complete report that indicated there
was no continuing employment-related iritis. Dr. Berg found the eye examination was normal
and based on his examination opined there was no continuing employment-related iritis.
Appellant submitted an April 23, 2015 report from Dr. Rabinowitz that refers to appellant
having asthma that was stable. He does not indicate what current evidence he relied on to
establish the diagnosis of asthma. Dr. Rabinowitz then indicates that exposure to photocopy
4

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

5

Furman G. Peake, 41 ECAB 361 (1990).

4

toner or extreme temperatures could trigger symptoms. The only explanation provided is that
appellant maintained her asthma was exacerbated by exposure to significant amounts of
photocopier toner. Dr. Rabinowitz does not explain why he believes exposure would trigger
symptoms. The Board also notes that the possibility of a future aggravation is not a basis for
compensation.6 When an aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased. Only if the employment
exposure causes a permanent condition, such as a heightened sensitivity to a wider field of
allergens, the claimant may be entitled to continuing compensation.7 Dr. Rabinowitz does not
provide a reasoned opinion that the exposure to toner in federal employment had caused a
permanent condition.
The Board accordingly finds that OWCP met its burden of proof to terminate
compensation in this case. The weight of the medical evidence is represented by the second
opinion physicians, Dr. Karetzky and Dr. Berg.
On appeal, appellant’s counsel argues that the report from Dr. Karetzky was not
sufficient to resolve the issue. He argues that Dr. Karetzky acknowledged that appellant required
use of an inhaler at times. The use of an inhaler does not establish a diagnosis of a continuing
employment-related respiratory condition. And as noted above, the possibility of a future
aggravation on return to work is not itself a basis for compensation. Counsel also argues the
medical evidence is sufficient to establish a conflict under 5 U.S.C. § 8123(a). It is well
established that a conflict arises when there are opposing medical reports of virtually equal
weight and rationale.8 For the reasons discussed, the medical reports are not of virtually equal
weight, and the second opinion physicians represent the weight of the 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 OWCP met its burden of proof to terminate compensation for wage-loss
and medical benefits effective May 12, 2015.

6

See D.M., Docket No. 11-0386 (issued February 2, 2012); Gaetan F. Valenza, 39 ECAB 1349 (1988).

7

James C. Ross, 45 ECAB 424 (1994); Gerald D. Alpaugh, 31 ECAB 589 (1980).

8

William C. Bush, 40 ECAB 1064 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2015 is affirmed.
Issued: July 14, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kensington, NY, Employer
__________________________________________
Appearances:
Robert J. Helbock, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1786
Issued: February 24, 2014

Case Submitted on the Record

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

On July 24, 2013 appellant, through counsel, sought appeal from a June 28, 2013
decision of the Office of Workers Compensation Programs (OWCP) denying his request for
reconsideration without conducting a merit review. The Board assigned Docket No. 13-1786.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. OWCP accepted the claim for right shoulder impingement, partial right rotator cuff
tear and right rib cage contusion. On January 29, 2013 it denied appellant’s claim for lumbar
scoliosis and neurofibroma. OWCP found that these conditions were not causally related to the
injury of March 22, 2012. In a separate decision, also dated January 29, 2013, it approved an
attorney fee request. On March 5, 2013 appellant’s attorney requested reconsideration. He
specifically noted that he was requesting reconsideration of the “decision of the claims examiner
dated January 29, 2013 that denied the claimant’s injury to his neck and back.” Counsel offered
arguments and additional medical evidence to support the request. By decision dated June 28,
2013, OWCP denied appellant’s request for reconsideration without conducting a merit review.
It explained that two decisions were issued on January 29, 2013, a decision granting approval of
an attorney’s fee and a denial of the claim for scoliosis. OWCP found that, “[a]s you did not
specify the decision for which reconsideration has been requested and you have not explained the
basis for the request for reconsideration, the request for reconsideration is prima facie
insufficient.”

The Federal Employees’ Compensation Act1 provides that OWCP shall determine and
make findings of fact in making an award for or against payment of compensation after
considering the claim presented by the employee and after completing such investigation as
OWCP considers necessary with respect to the claim.2 Since the Board’s jurisdiction of a case is
limited to reviewing that evidence which was before OWCP at the time of its final decision,3 it is
necessary that OWCP review all evidence submitted by a claimant and received by OWCP prior
to issuance of its final decision. As the Board’s decisions are final as to the subject matter
appealed,4 it is crucial that all evidence relevant to that subject matter which was properly
submitted to OWCP prior to the time of issuance of its final decision be addressed by OWCP.5
In the instant case, OWCP did not consider the argument and evidence submitted by counsel
with his March 5, 2013 reconsideration request. This is underscored by OWCP’s finding that
counsel “did not specify the decision for which reconsideration has been requested and you have
not explained the basis for the request for reconsideration.” As noted, counsel’s March 5, 2013
reconsideration request specifically noted that reconsideration was sought from OWCP’s
January 29, 2013 denial of the claim to appellant’s neck and back. OWCP’s June 28, 2013
decision also did not otherwise indicate a review of any of the new medical evidence submitted
by appellant after the January 29, 2013 decision.
The Board, therefore, must set aside OWCP’s June 28, 2013 decision and remand the
case for OWCP to fully consider appellant’s March 5, 2013 reconsideration request as well as the
evidence which was properly submitted by appellant subsequent to the January 29, 2013 decision
denying appellant’s claim for an injury to his neck and back. Following such further
development as OWCP deems necessary, it shall issue an appropriate decision.

1

5 U.S.C. §§ 8101 et seq.

2

Id. at § 8124(a)(2); 20 C.F.R. § 10.125.

3

See id. at § 501.2(c).

4

Id. at § 501.6(c).

5

William A. Couch, 41 ECAB 548 (1990).

2

IT IS HEREBY ORDERED THAT the June 28, 2013 decision is set aside and the case
remanded for further proceedings consistent with this order of the Board.
Issued: February 24, 2014
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

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

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

Docket No. 10-2276
Issued: June 14, 2011

Case Submitted on the Record

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

JURISDICTION
On September 10, 2010 appellant filed a timely appeal of an April 14, 2010 Office of
Workers’ Compensation Programs’ merit decision granting a schedule award and an August 25,
2010 decision finding he abandoned an oral hearing. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider
the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than three percent impairment of his right
lower extremity and no impairment of his left lower extremity; and (2) whether the Branch of
Hearings and Review properly found that appellant had abandoned his request for an oral
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 22, 2007 appellant, then a 50-year-old mail processor, filed a traumatic
injury claim alleging that he sustained a low back strain on February 21, 2007 when placing trays
of mail in a cage in the performance of duty. The Office accepted the claim on March 16, 2007
for strain of lumbosacral joint and ligament. On March 3, 2007 appellant underwent a magnetic
resonance imaging (MRI) scan which demonstrated mild L3-4 and L4-5 disc desiccation and
bulge and mild L2-3 and L5-S1 disc desiccation. Appellant’s attending physician, Dr. Edward J.
Dohring, a Board-certified orthopedic surgeon, diagnosed L3-4 right disc herniation, right L4
radiculitis and radiculopathy, L3-4 disc protrusion causing spinal stenosis and L3-4 degenerative
disc disease on November 7, 2007.
The Office referred appellant for a second opinion evaluation on March 27, 2008. In a
report dated April 18, 2008, Dr. Jon T. Abbott, a Board-certified orthopedic surgeon and second
opinion physician, reviewed appellant’s history of injury and medical history. He found normal
strength in all motor groups in both lower extremities and an intact sensory examination.
Dr. Abbott reviewed the MRI scan and diagnosed lumbosacral strain and L3-4 herniated disc.
He stated that the herniated disc was either related to the acute injury on February 21, 2007 or to
the treatment for the injury. Dr. Abbott noted that appellant reported low back and right lower
extremity pain with intermittent numbness of the right third through fifth toes.
The Office accepted appellant’s claim for the additional condition of L3-4 herniated disc
on April 29, 2008. Appellant underwent an MRI scan on June 20, 2008 which demonstrated a
degenerative disc at L3-4 with a small disc extrusion and a left-sided synovial cyst. Dr. Dohring
performed L3 and L4 left spinal stenosis decompression, partial laminectomies, partial
foraminotomies and partial facectomies with decompression of the cauda equine and nerve roots
on September 9, 2008.
Dr. Dohring completed a report on April 24, 2009 and opined that appellant had reached
maximum medical improvement. He noted that appellant continued to experience pain in both
the back and right leg. Dr. Dohring reported normal muscle strength in the lower extremities, but
found that sensation was decreased to light touch and pin prick in the right lower extremity. He
stated that permanent impairment of 10 percent was appropriate.
Appellant filed a claim for compensation and requested a schedule award on
November 17, 2009. In a letter dated November 20, 2009, the Office requested additional
information from Dr. Dohring regarding any permanent impairment of the lower extremities as a
result of appellant’s accepted back injuries. Dr. Dohring did not respond.
The Office referred the medical evidence to the Office medical adviser on
March 19, 2010. The medical adviser reviewed Dr. Dohring’s reports and the diagnostic studies.
Applying the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment,2 (A.M.A., Guides) the Office medical adviser found documentation of
2

For new decisions issued after May 1, 2009, the Office began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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right lower extremity symptoms only. He identified the right L4 nerve root as the most likely
cause of the right lower extremity pain based on appellant’s medical history and noted that
moderate sensory deficit and pain involving L4 nerve root was three percent default rating.
Applying the formula, the medical adviser found a functional history adjustment of one and that
neither physical examination adjustment nor clinical studies adjustment was applicable for a
default rating of three percent. The Office medical adviser concluded that the medical record did
not indicate any lower extremity findings and hence no impairment.
By decision dated April 14, 2010, the Office granted appellant a schedule award for three
percent impairment of the right lower extremity and zero percent impairment of the left lower
extremity.
Appellant requested an oral hearing on April 29, 2010. In a letter dated July 1, 2010, the
Branch of Hearings and Review informed him that his oral hearing would take place on
August 4, 2010 at 4:00 p.m. eastern time and provided him with the telephone number and the
pass code. By decision dated August 25, 2010, the Branch of Hearings and Review noted that he
failed to appear for the oral hearing and that there was no indication that he contacted the Office
to explain his failure to appeal. The Branch of Hearings and Review found that appellant had
abandoned his request for an oral hearing.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act3 and it implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of the Office. 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. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides.5
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.6 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,7 no claimant is
entitled to such an award.8 Amendments to the Act, however, modified the schedule award
provisions to provide for an award for permanent impairment to a member of the body covered
3

5 U.S.C. §§ 8101-8193, 8107.

4

20 C.F.R. § 10.404.

5

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

6

William Edwin Muir, 27 ECAB 579 (1976).

7

The Act itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

8

Timothy J. McGuire, 34 ECAB 189 (1982).

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by the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provisions of the Act include the extremities, a
claimant may be entitled to a schedule award for permanent impairment to a limb even though
the cause of the impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under the Act, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.10 The Office has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3.700 of its
procedures.11 Specifically, it will address lower extremity impairments originating in the spine
through Table 16-1112 and upper extremity impairment originating in the spine through Table
15-14.13
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on functional history (GMFH)
and if electrodiagnostic testing were done, clinical studies (GMCS).14 The net adjustment
formula is (GMFH - CDX) + (GMCS - CDX).15
ANALYSIS -- ISSUE 1
Appellant’s attending physician, Dr. Dohring, opined that appellant had reached
maximum medical improvement on April 24, 2009 and found that appellant had 10 percent
impairment. He based this rating on findings of continued pain in the back and right leg.
Dr. Dohring reported that appellant had normal muscle strength in the lower extremities. He
found that sensation was decreased to light touch and pin prick in the right lower extremity. The
Board finds that this report is not sufficient to constitute the weight of the medical opinion
evidence for schedule award purposes as Dr. Dohring did not identify the scheduled member for
which he was providing an impairment rating. Dr. Dohring also failed mention the A.M.A.,
Guides or correlate his findings in anyway with the applicable provisions of the A.M.A., Guides.
Due to these deficiencies, this report is not sufficient to establish an impairment rating of
10 percent of any scheduled member.
9

Rozella L. Skinner, 37 ECAB 398 (1986).

10

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 2,
Chapter 3.700, Exhibit 4 (January 2010).
11

Federal (FECA) Procedure Manual, supra note 2, Chapter 3.700 Exhibits 1 (January 2010).

12

A.M.A., Guides 533, Table 16-11.

13

Id. at 425, Table 15-14.

14

Id. at 533.

15

Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

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It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and the Office may rely on the opinion
of its Office medical adviser to apply the A.M.A., Guides to the findings of the attending
physician.16 The medical adviser reviewed the medical records and found evidence of symptoms
in the right lower extremity. He identified the right L4 nerve root as the most likely cause of the
right lower extremity pain based on appellant’s medical history and noted that appellant had
moderate sensory deficit or impaired light touch but retained sharp and dull recognition17 and
pain involving L4 nerve root which was three percent default rating.18 Applying the
above-described formula, the medical adviser found that the adjustment of zero for functional
history only, as clinic studies adjustment was not appropriate and that appellant has a default
rating of three percent. He concluded that the medical record did not indicate any lower
extremity findings and hence no impairment.
The Board finds that the Office medical adviser properly applied the A.M.A., Guides and
reached an impairment rating of three percent for the right lower extremity and no impairment
rating for the left lower extremity as there were no physical findings reported.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”19
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.20
OWCP’s procedures state:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.

16

Linda Beale, 57 ECAB 429 (2006).

17

A.M.A., Guides 533, Table 16-11.

18

Federal (FECA) Procedure Manual, supra note 2, Chapter 3.700 (Exhibits 4, Proposed Table 2) (January 2010).

19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. § 10.616(a).

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“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return to case to the DO [district Office].”21
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing and on July 1, 2010, the Branch of Hearings and
Review informed him that his oral hearing would take place on August 4, 2010 at 4:00 p.m.
eastern time and provided him with the telephone number and the pass code. The record does
not reflect that appellant requested postponement of the hearing prior to the scheduled date of the
hearing. Appellant did not appear for the oral hearing. Neither did he provide any notification
for the failure to appear within 10 days after the scheduled date of the hearing. Appellant’s
failure to provide any notification, together with his failure to appear at the scheduled hearing,
constituted abandonment of his request for a hearing and the Board finds that the Office properly
so determined.
CONCLUSION
The Board finds that appellant has no more than three percent impairment of his right
lower extremity, for which he received a schedule award and no impairment of his left lower
extremity entitling him to a schedule award. The Board further finds that the Office properly
determined that he abandoned his request for an oral hearing.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
1.1601.6(e) (January 1999).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 25 and April 14, 2010 are affirmed.
Issued: June 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
C.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTINGTON VETERANS
ADMINISTRATION MEDICAL CENTER,
Huntington, WV, Employer
__________________________________________

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Appearances:
Steven J. Dunn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-194
Issued: June 23, 2014

Case Submitted on the Record

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

JURISDICTION
On October 30, 2013 appellant, through her attorney, filed a timely appeal of an
October 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability on and after
December 29, 2012 causally related her accepted November 16, 2010 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2010 appellant, then a 39-year-old program specialist, filed a traumatic
injury claim alleging that on November 16, 2010 she felt pain in her right shoulder, arm and
hand while moving a bookcase. OWCP accepted the claim for cervical intervertebral disc
disorder with radiculopathy and myelopathy. Appellant returned to work for four hours a day in
February 2011 and later increased to eight hours without restrictions at the end of
September 2011.
A January 15, 2013 report by Dr. Amy Lynch, an examining osteopath and
Board-certified physiatrist, noted the occupational employment injury and medical histories and
conducted a physical examination. Diagnoses included: right shoulder joint pain secondary to
cervical disc disorder and myelopathy; constipation due to medicine used to treat appellant’s
cervical injury; cervical disc disorder with myelopathy; and chronic pain. Appellant related
feeling pain secondary to her cervical disc disorder with myelopathy. She was currently
teleworking from Des Moines, IA. Appellant related that her pain increased to the point where
she was unable to work. Physical therapy was recommended as well as limiting her to working
one-hour a day for five days a week while in therapy.
In a February 28, 2013 report, Dr. Michael Jacoby, an examining Board-certified
neurologist, noted the medical and employment injury history, performed a physical examination
and reviewed medical evidence. He noted that appellant returned to full-time work in the fall of
2011, but has not worked since December 2012. Dr. Jacoby related that she currently was in a
different job position than one she held at the time of her employment injury on
November 16, 2010. He diagnosed cervical disc disorder with myelopathy and left arm pain. In
concluding, Dr. Jacoby noted that myelopathic features were lacking and he was “unable to
objectify [appellant’s] complaints of pain.” He recommended that she be seen by a pain
specialist.
In an April 11, 2013 progress report, Dr. Lynch provided physical findings. Diagnoses
included: carpal tunnel syndrome, neck pain, cervical disc disorder with myelopathy and chronic
pain secondary to cervical disc disorder with myelopathy.
In an August 3, 2013 letter, appellant requested OWCP to expand her claim to include all
her extremities. She alleged that the crushing of her spinal cord and corrective spinal cord
surgery affected all her extremities and speech. Appellant noted that she suffers from great pain,
weakness and very limited endurance.
Appellant filed a claim for a recurrence of disability beginning December 29, 2012. She
stated that her neck symptoms became increasingly worse on December 11, 2012 and that the
pain became paralyzing and more frequent over the next few weeks. Appellant submitted
medical and factual evidence in support of her claim.
In a January 10, 2013 disability note, Dr. Sarah C. Tallman, a treating osteopath and
Board-certified internist, reported that appellant had been under her care from
December 26, 2012 and recommended that appellant be allowed to telework from home through
January 21, 2013.

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On June 20, 2013 Dr. Robert W. Macht, a treating Board-certified surgeon, noted
appellant’s employment injury and medical histories. He related that she returned to full-duty
work in September 2011. Diagnoses included postoperative state of neck with fusion and right
arm injury. Dr. Macht opined that appellant was totally disabled as she is precluded from
prolonged sitting and using computers, which is what her current job duties required. In
concluding, he concluded that she was permanently disabled from working.
Dr. Lynch, in a March 5, 2013 work status report, diagnosed cervical disc disorder with
radiculopathy and myelopathy. She prescribed physical therapy and recommended that appellant
be off work for eight weeks or through April 30, 2013. In a report dated April 12, 2013,
Dr. Lynch indicated that appellant was totally disabled from working for the period
April 11, 2013 through April 11, 2014. In an undated report, she recommended that appellant be
off work for the period June 11, 2013 through June 11, 2014. Dr. Lynch indicated that appellant
was disabled from working due to weakness in her four extremities, neck pain and bilateral arm
pain. She opined that appellant’s symptoms were aggravated by her employment duties
requiring using and working on a computer.
By letter dated August 26, 2013, OWCP informed appellant that the evidence of record
was insufficient to support her claim for a recurrence of disability due to her accepted
employment injury. Appellant was advised as to the type of medical and factual evidence
required to establish her claim and given 30 days to provide this information.
In a September 10, 2013 report, Dr. Lynch noted the employment injury, employment
history and provided physical examination findings. She noted that appellant was released to
full-duty work in September 2011 when she accepted a job offer with Department of Homeland
Security as a space management specialist. Appellant related that in December 2012 her
symptoms of fatigue, weakness and pain worsened. She was unsure of the cause, but believed “it
was a culmination of continued work of 40 hours a week.” Dr. Lynch reported that appellant’s
pain was exacerbated by using a mouse and computer work. Diagnosed conditions include
cervical disc disorder, chronic pain due to cervical disc disorder and abnormal gait due to
cervical disc disorder. Dr. Lynch stated that appellant’s computer work exacerbates her pain. In
concluding, she related that following appellant’s surgery her pain and disability never resolved
and that she returned to full-duty work at her request in September 2012. She stated that
appellant demonstrated right upper extremity weaknes, difficutly with gait and balance and
continued with her neck and bilateral upper extremity chronic pain.
By decision dated October 7, 2013, OWCP denied appellant’s recurrence claim.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 If the disability results from new exposure to work factors, the legal
2

20 C.F.R. § 10.5(x). See also A.M., Docket No. 09-1895 (issued April 23, 2010); Hubert Jones, Jr., 57 ECAB
467 (2006).

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chain of causation from the accepted injury is broken and an appropriate new claim should be
filed.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
establish that she cannot perform limited-duty work.4
ANALYSIS
OWCP accepted that appellant sustained cervical intervertebral disc disorder with
radiculopathy and myelopathy as the result of her November 16, 2010 employment injury.
Appellant accepted a position with the Department of Homeland Security and returned to
full-duty work in September 2012. She claims that she sustained a recurrence of total disability
on and after December 29, 2012 due to her accepted November 16, 2010 employment injury.
OWCP denied appellant’s recurrence claim on October 7, 2013. The issue on appeal is whether
appellant submitted sufficient evidence supporting her claim for a recurrence of disability. The
Board finds that she failed to establish her recurrence claim.
In support of her claim, appellant submitted medical evidence from Drs. Lynch and
Macht indicating periods of total disability. She also submitted disability notes from
Dr. Tallman on January 16, 2013. On June 20, 2013 Dr. Macht opined that appellant was totally
disabled from working as she is precluded from using computers and prolonged sitting. He
noted that she had returned to full-duty work in September 2011 and that she was now totally
disabled from her current employment duties. In various reports and disability notes, Dr. Lynch
diagnosed cervical disc disorder with radiculopathy and myelopathy indicated that appellant was
disabled from working for the period March 2013 through June 2014. The histories given by
Drs. Lynch and Macht do not adequately address how appellant’s disability beginning
December 29, 2012 was causally related to her November 16, 2010 employment injury
especially as she was returned to full-duty work in September 2011. Both physicians attributed
appellant’s inability to work to either her bilateral arm pain or discogenic pain. The Board has
consistently held that pain is a symptom, not a compensable medical diagnosis.5 In addition,
Dr. Lynch in undated and September 10, 2013 reports appears to attribute appellant’s increased
pain and resulting disability to a new work injury, i.e., aggravation by her employment duties
involving computer work and use of a mouse. Further, neither Dr. Lynch nor Dr. Macht
provided sufficient rationale explaining how appellant’s diagnosed condition and disability
commencing December 29, 2012 were causally related to the accepted condition.6 They
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); K.C., Docket
No. 08-2222 (issued July 23, 2009); Cecelia M. Corley, 56 ECAB 662 (2005); Donald T. Pippin, 54 ECAB
631 (2003).
4

Cecelia M. Corley, 56 ECAB 662 (2005).

5

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

6

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

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provided no rationale or explanation as to why appellant’s disability was due to the accepted
November 16, 2010 employment injury and, thus their opinions are of diminished probative
value.7
Appellant also submitted a January 28, 2013 report from Dr. Jacoby diagnosing cervical
disc disorder with myelopathy and left arm pain. As Dr. Jacoby did not offer any opinion
regarding her recurrence of disability on December 29, 2012, this report is of diminished
probative value.8
Appellant did not submit sufficient medical evidence to establish that she sustained a
recurrence of disability beginning December 29, 2012 causally related to her November 16, 2010
work injury. Therefore, the Board finds that she did not meet her burden of proof.
On appeal, counsel contended that OWCP’s decision is contrary to fact and law. For
reasons stated above, the Board finds that the weight of the medical evidence does not establish
that appellant’s recurrence of disability beginning December 29, 2012 was causally related to her
accepted November 16, 2010 employment injury.
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 in establishing that she
sustained a recurrence of disability on and after December 29, 2012 causally related her accepted
November 16, 2010 employment injury.

7

Albert C. Brown, 52 ECAB 152 (2000).

8

See Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2013 is affirmed.
Issued: June 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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