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

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

Docket No. 15-0838
Issued: April 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 March 2, 2015 appellant filed a timely appeal from November 17, 2014 and
January 15, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation effective November 3, 2013 as he had no further disability due to his
November 17, 1996 employment injury; and (2) whether appellant has met his burden of proof to
establish continuing employment-related disability after November 13, 2013.

1
2

5 U.S.C. § 8101 et seq.

The record contains a decision dated October 7, 2014 issued in subsidiary file number xxxxxx808. Appellant
has not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.3(a).

FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 17, 2002, the
Board affirmed a September 19, 2000 decision granting appellant a schedule award for 10
percent permanent impairment of the right arm and a January 20, 2001 decision denying his
request for a hearing.3 The facts and the circumstances as set forth in the prior decision are
incorporated herein by reference.
On December 30, 1997 appellant, then a 39-year-old mail handler, filed a claim for a
traumatic injury (Form CA-1) alleging that on November 27, 1996 he strained his right shoulder
in the performance of duty. OWCP accepted the claim, assigned file number xxxxxx850, for
right shoulder strain, chronic bursitis and tendinitis of the right shoulder, and a torn right rotator
cuff. Appellant underwent shoulder surgeries on May 26, 1998 and April 13, 1999.
OWCP also accepted appellant’s August 1999 occupational disease claim for an acute
left shoulder strain. It combined the left shoulder claim, assigned file number xxxxxx808, into
file number xxxxxx850.
By decision dated June 16, 2011, OWCP reduced appellant’s compensation to zero based
on its finding that his actual earnings as a clerk fairly and reasonably represented his wageearning capacity.4
On July 19, 2011 appellant accepted a position as a custodian. He worked in this position
until April 2013, when he underwent an authorized right shoulder subacromial decompression
and distal clavicle resection. OWCP paid appellant compensation for total disability beginning
April 12, 2013.
In an office visit note dated October 31, 2013, Dr. Guenther O. Knoblich, an attending
Board-certified orthopedic surgeon, noted that appellant’s right shoulder was “doing very well”
but that he was having difficulties with his left shoulder. He diagnosed status post right shoulder
surgery and left shoulder impingement syndrome and acromioclavicular arthritis. Dr. Knoblich
recommended left shoulder surgery.
In a work restriction evaluation dated November 5, 2013, Dr. Knoblich released appellant
to return to work without restrictions.5
On November 25, 2013 appellant filed a claim for compensation (Form CA-7) beginning
November 3, 2013 under the current file number. By letter dated November 26, 2013, OWCP
3

Docket No. 01-1438 (issued April 17, 2002).

4

In a decision dated December 31, 2013, OWCP denied appellant’s claim for compensation beginning March 7,
2011 as he had not shown that the loss of wage-earning capacity determination should be modified.
5

On November 6, 2013 the employing establishment noted that appellant’s physician released him to resume his
usual employment under the current file number. Under another file number, accepted for a left shoulder condition,
a work restriction evaluation contained limitations. The employing establishment inquired as to the status of the left
shoulder claim, assigned file number xxxxxx808. OWCP advised that the claim was under development.

2

requested that he
November 3, 2013.

submit

medical

evidence

supporting

continuing

disability

from

In a decision dated December 31, 2013, OWCP denied appellant’s claim for
compensation beginning November 3, 2013. It found that Dr. Knoblich released him to resume
work on November 5, 2013.
In a telephone call dated January 9, 2014, appellant advised OWCP that the employing
establishment did not have a position available within his restrictions. He maintained that the
release to his usual employment was to his permanent limited-duty position.
In a progress report dated December 2, 2013, Dr. Knoblich indicated that appellant
related that his right shoulder “is awesome” but he was experiencing left shoulder problems with
abduction. He opined, “I have discussed with [appellant] that his right shoulder is doing well.
Dr. Knoblich still does not think that he is capable of doing his job. He is a mail handler with the
shoulder. I have therefore recommended that [a] work capacity evaluation be done.”
Dr. Knoblich indicated that appellant probably required left shoulder surgery to “return to work
in his somewhat manual labor profession.”
In a January 27, 2014 work capacity evaluation, Dr. Knoblich diagnosed right shoulder
rotator cuff sprain and syndrome. He released appellant to his permanent limited-duty job.
Dr. Knoblich related, “The return to regular/usual job is the modified duty he had been assigned
for many years. He is not able to return to the original job at injury (mail processing clerk).”
Dr. Knoblich noted that appellant was scheduled for a functional capacity evaluation.
A functional capacity evaluation dated February 24, 2014 found that appellant could
perform sedentary work. The evaluator noted that the accepted condition was status post right
subacromial decompression and that he also had a right knee condition and bulging discs at L4
and L5.
A work capacity evaluation dated February 24, 2014 listed the accepted conditions as
right shoulder sprain, right rotator cuff syndrome, and a right rotator cuff sprain. Dr. Knoblich
completed the form and found that appellant could work eight hours per day in his usual
modified employment. He listed restrictions of pushing, pulling, and lifting up to five pounds,
reaching from the waist to chest only, and no climbing, reaching over the shoulder, or repetitive
wrist and elbow movements. Dr. Knoblich referenced the functional capacity evaluation and
determined that appellant could not work as a mail processing clerk.
In an e-mail dated March 3, 2014, the employing establishment informed OWCP that it
had received “the attached updated medical dated January 27, 2014 reflecting the employee is
not released to full duty, but rather released to the modified duty he had been assigned to
previously.” It noted that a progress report indicated that appellant’s right shoulder was doing
well but that he did not believe that he could perform his usual employment. The employing
establishment attached a copy of the January 27, 2014 work restriction evaluation. It inquired
whether it was obligated to offer limited-duty work to appellant due to his right shoulder
condition.

3

In an e-mail response dated March 4, 2014, OWCP advised the employing establishment
that as appellant was released to his usual employment, he was expected to perform his regular
employment absent a medical report supported by objective findings.
On April 7, 2014 appellant requested reconsideration.6
On November 13, 2014 OWCP contacted the employing establishment to determine
whether appellant had submitted the January 27 and February 24, 2014 work restriction
evaluations.7 The employing establishment indicated that he had not submitted the forms but
that OWCP provided it with a copy of the February 24, 2014 work restriction evaluation on
July 21, 2014.
By decision dated November 17, 2014, OWCP denied modification of its December 31,
2013 decision. It found that the January 27 and February 24, 2014 work restriction evaluations
from Dr. Knoblich established that appellant was able to return to his position as a modified
custodian rather than his date-of-injury position. OWCP thus accepted that appellant had
continued work restrictions as a result of his November 27, 1996 work injury. It found, however,
that he had not sought suitable employment after Dr. Knoblich issued his limited-duty
restrictions, and thus was not entitled to compensation beginning January 27, 2014.
On December 1, 2014 appellant requested reconsideration.
In an undated statement received by OWCP on December 1, 2014, appellant asserted that
the employing establishment did not offer him a limited-duty position. He additionally advised
that the nurse assigned by OWCP had submitted his restrictions to the employing establishment.
In another statement received December 1, 2014, appellant asserted that the nurse
assigned by OWCP informed him that she had contacted the employing establishment and found
that it did not have work available.8 He maintained that the nurse threatened Dr. Knoblich if he
did not return him to full duty. Dr. Knoblich later found that he could perform limited duty.
Appellant contended that the employing establishment did not offer him any position following
his surgery. He indicated that he asked a manager if there was work available but the manager
stated there was not. Appellant also related that he worked as a nixie clerk rather than a
custodian.
By decision dated December 23, 2014, OWCP denied appellant’s request for
reconsideration after finding that he had not submitted evidence or raised an argument sufficient
to warrant reopening his case for further merit review under 5 U.S.C. § 8128.
6

By decision dated June 5, 2014, OWCP granted appellant a schedule award for an additional one percent
permanent impairment of the right upper extremity.
7

In a form report relevant to disability retirement, Dr. Ruth Lowengart, a Board-certified internist, diagnosed
bilateral shoulder impingement and rotator cuff strain and found that appellant had a deficiency in performing his
work as a result of the diagnosed conditions.
8

In a form dated July 18, 2014, Dr. Lowengart again found that appellant could not perform his work as a result
of bilateral shoulder impingement and rotator cuff strain.

4

In a decision dated January 15, 2015, OWCP vacated its December 23, 2014 decision
after finding that it failed to consider appellant’s statement. Following a merit review it denied
modification of its November 17, 2014 decision.
On appeal appellant argues that OWCP refused to compensate him for time lost from
work or assist him in returning to work or with retraining. He asserts that the employing
establishment did not have work for him after he was released to return to work in
November 2013.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.9
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right shoulder strain, a torn right rotator cuff,
and chronic right shoulder bursitis and tendinitis. In a decision dated June 16, 2011, it reduced
his compensation to zero after finding that his actual earnings as a clerk fairly and reasonably
represented his wage-earning capacity. In April 2013 OWCP authorized a right shoulder
subacromial decompression and distal clavicle resection. It paid appellant compensation for total
disability from April 12 until November 3, 2013, when it determined that he had no further
disability due to his work injury. The Board notes that although OWCP did not characterize its
December 31, 2013 decision as a termination of compensation, it nevertheless had the burden of
proof to establish that appellant had no continuing disability as a result of his work injury, as it
had paid him compensation for total disability from April 12, 2013 until it terminated his
compensation effective November 3, 2013. A pretermination notice was not required, however,
as OWCP paid appellant on the daily rolls for less than one year.11
On October 31, 2013 Dr. Knoblich found that appellant’s right shoulder was “doing very
well” after surgery but that he had pain in his left shoulder. He diagnosed status right shoulder
surgery and left shoulder impingement and acromioclavicular joint arthritis. In a work restriction
evaluation dated November 5, 2013, Dr. Knoblich released appellant to resume his usual
employment without restrictions. As appellant’s attending physician, he had a thorough
knowledge of his condition and thus his opinion constitutes the weight of the medical evidence.12
OWCP, consequently, properly relied upon Dr. Knoblich’s opinion in terminating his
compensation effective November 3, 2013 as he had no continuing disability.
9

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

10

Gewin C. Hawkins, 52 ECAB 242 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(a)(3) (February 2013).

12

See C.B., Docket No. 10-1623 (issued April 11, 2011).

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LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated compensation benefits, the burden of proof shifted to
appellant to establish continuing disability after that date related to his accepted injury.13 To
establish a causal relationship between the condition as well as any attendant disability claimed
and the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.14 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.15
Compensation for wage loss due to disability is available only for periods during which
an employee’s work-related medical condition prevents him from earning the wages earned
before the work-related injury. An employee is not entitled to compensation for any wage loss to
the extent that evidence establishes that he had medical work restrictions in place, that light duty
within those work restrictions was available, and that the employee was previously notified in
writing that such duty was available.16
ANALYSIS -- ISSUE 2
Following the termination of compensation, appellant submitted reports dated January 27
and February 24, 2014 from Dr. Knoblich who indicated that he had continued work restrictions
as a result of his injury and clarifying that he was released to his permanent modified work rather
than to his date-of-injury position. Based on this evidence, OWCP accepted that appellant had
continued work restrictions beginning January 27, 2014 as a result of his November 27, 1996
employment injury. It found, however, that he was not entitled to compensation because he did
not seek suitable work when he was partially disabled. OWCP determined that appellant did not
submit either the January 27 or February 24, 2014 work restriction evaluations showing that he
was partially disabled to the employing establishment so that it could provide him with a limitedduty position.
Contrary to OWCP’s finding, however, in an e-mail dated March 3, 2014 the employing
establishment informed OWCP that it had received a January 27, 2014 work restriction
evaluation and asked whether it should provide appellant with a limited-duty job offer. In
response, OWCP advised that, if the claimant was released to full duty, he is expected to work
full duty. However, it appears that he was not released by Dr. Knoblich to full duty at that time.
Consequently, there is evidence that the employing establishment received the January 27, 2014
work restriction evaluation from Dr. Knoblich providing work restrictions but did not offer
appellant a limited-duty position within the designated limitations. The case, therefore, will be

13

Manual Gill, 52 ECAB 282 (2001).

14

Id.

15

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16

20 C.F.R. § 10.500(a).

6

remanded for OWCP to determine the periods to which he is eligible for compensation for his
continuing disability.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation effective November 3, 2013 as he had no further disability due to his
November 17, 1996 employment injury. The Board further finds that he has established
disability after November 3, 2013 due to his accepted November 27, 1996 employment injury.
The case is remanded for OWCP to determine the period of disability.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board. The November 17, 2014 decision is affirmed.
Issued: April 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hopewell Junction, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-762
Issued: July 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 21, 2014 appellant, through his attorney, filed a timely appeal from a
January 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an umbilical hernia condition causally
related to a September 26, 2012 incident.
FACTUAL HISTORY
On October 17, 2012 appellant, then a 28-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a hernia condition as a result of lifting and stacking
pallets at work on September 26, 2012. In a letter dated October 11, 2012, his postmaster
1

5 U.S.C. § 8101 et seq.

controverted the claim noting that on September 21, 2012 appellant had told a supervisor that he
was going to schedule a hernia operation. Appellant reported the alleged lifting incident to his
supervisor on September 26, 2012.
The record indicates that appellant received treatment from a physician’s assistant on
September 26, 2012, reporting pain in the abdominal area from lifting pallets. In a report dated
October 3, 2012, Dr. Lyda Rojas Carroll, a Board-certified surgeon, noted that he had been
diagnosed with an umbilical hernia in January 2011. Dr. Carroll indicated that appellant stated
that he was fine until lifting pallets on September 26, 2012, when he developed pain and swelling
in the umbilical region. She provided results on examination, diagnosed incarcerated umbilical
hernia, increasing in size and now symptomatic and indicated the option of surgery was
discussed.
By form report (CA-20) dated November 29, 2012, Dr. Rabi Sinha, an internist,
diagnosed umbilical hernia and checked a box “yes” that the condition was employment related.
He provided a history that appellant was lifting pallets and felt pain.
In a decision dated December 13, 2012, OWCP denied the claim for compensation. It
found that appellant had established incident but had not submitted sufficient factual or medical
evidence to establish that the incident caused his hernia condition.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 1, 2013. He disputed the allegation that surgery had been scheduled prior to the
September 26, 2012 incident; although he admitted talking about getting surgery scheduled as it
was something that would eventually have to be performed.
In a report dated January 2, 2013, Dr. Sinha stated that appellant had a history of an
umbilical hernia and on September 26, 2012 appellant reported that he was lifting a pallet and
felt pain in the hernia area. He opined that the incident caused acute pain and worsened the
hernia.
In a report dated January 4, 2013, Dr. Carroll stated that appellant had lifted wood pallets
at work on September 26, 2012 and stated that he developed pain and swelling at the umbilical
site. She stated a computerized tomography (CT) scan was performed on September 26, 2012
and a “fat containing paraumbilical hernia” was observed. Dr. Carroll opined that this change in
appellant’s hernia status was due to lifting wood pallets and also aggravated the existing hernia
and caused an incarceration.
By decision dated May 16, 2013, the hearing representative affirmed the December 12,
2012 OWCP decision.
In a letter dated November 4, 2013, appellant, through his representative, requested
reconsideration of the claim. He submitted a September 9, 2013 report from Dr. Carroll, who
indicated that he underwent surgery on June 28, 2013. Dr. Carroll further stated:
“Based on my medical examination and evaluation of [appellant] since January 5,
2011 to the present date, I believe that [he] did have an umbilical hernia; however,
it did not become incarcerated and symptomatic, requiring surgery until the
2

incident occurred on September 26, 2012, when he was lifting pallets and
subsequently felt a significant amount of abdominal pain, causing a reevaluation
and a CT scan. My physical exam[ination] on October 3, 2012 identified an
incarcerated umbilical hernia with macerated skin overlying it, which was a
concern for the incarcerated umbilical hernia to perforate through the skin, which
would have caused further complications and prolonged healing if these were to
occur and therefore I did recommend surgical intervention despite his medical
history of a clotting disorder, requiring anticoagulation. Therefore, it is my
medical opinion that the incident on September 26, 2012 caused the once
reducible hernia to become incarcerated and therefore required surgery.”
Dr. Carroll recommended that appellant avoid strenuous activity as he was at risk for
developing a recurrent hernia.
By decision dated January 28, 2014, OWCP denied modification. It noted the
September 9, 2013 report from Dr. Carroll, but found that it was not based on complete factual
and medical background. The claims examiner stated, “Factual evidence indicates surgery was
required due to a worsening of the underlying nonwork[-]related medical condition.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of 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, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employing establishment injury.2 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
When an employee claims that he or she sustained an injury in the performance of duty,
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time place and in the manner alleged.4 He or she must also
establish that such event, incident or exposure caused an injury.5

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). To
determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be
determined whether the fact of injury has been established. First, the employee must submit sufficient evidence to
establish that he or she actually experienced the employing establishment incident at the time, place and in the
manner alleged. Second, the employee must submit evidence, in the form of medical evidence, to establish that the
employing establishment incident caused a personal injury. See John J. Carlone, 41 ECAB 354, 356-57 (1989);
Julie B. Hawkins, 38 ECAB 393, 396 (1987).
4

Betty J. Smith, 54 ECAB 174, 177 (2002).

5

Id.; see also Abe E. Scott, 45 ECAB 164 (1993).

3

In order to establish causal relationship, a physician’s opinion must be based on a
complete factual and medical background,6 must be one of reasonable medical certainty7 and
must be supported by sound medical rationale explaining the nature of the relationship between
the diagnosed condition and the established incident or factor of employment.8
ANALYSIS
Appellant filed a claim for injury on September 26, 2012. The initial decision dated
December 13, 2012 found that the evidence was not sufficient to establish an incident occurred
as alleged. The denial of the claim in the May 16, 2013 and January 28, 2014 decisions were
based on a review of the medical evidence. Appellant alleged that he was lifting and stacking
pallets on September 26, 2012 and there is no contrary evidence.9 He provided notice of an
injury to a supervisor on September 26, 2012. The employing establishment’s controversion of
the claim was based primarily on evidence that appellant had discussed the need for hernia
surgery prior to September 26, 2012.
OWCP’s claims examiner found that the “factual evidence” showed that surgery was
required for a nonemployment-related condition and therefore Dr. Carroll did not have an
accurate background. However, the issue of whether surgery was required is a medical issue that
is determined by the medical evidence. There is no indication that Dr. Carroll lacked an accurate
factual or medical history. She acknowledged that the diagnosis of an umbilical hernia was
made as early as January 2011 and therefore preexisted the September 26, 2012 incident.
Dr. Carroll provided an opinion in her September 9, 2013 report that, based on her examination
and treatment of appellant since January 2011, the employing establishment incident had
aggravated the underlying hernia and caused it to be symptomatic and incarcerated, requiring
surgery. Her report is well rationalized as to how a preexisting hernia can be aggravated
sufficient to require the time for surgery to be accelerated.
This evidence is sufficient to require OWCP to further develop the medical evidence.10
The case will be remanded to OWCP for further development of the medical evidence on the
issue of whether appellant’s umbilical hernia was casually related to or aggravated by the
September 26, 2012 incident and if so, whether the June 28, 2013 surgery was causally related to
the employing establishment injury. After such further development as OWCP finds necessary,
it should issue an appropriate decision.

6

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

7

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

8

Gary L. Fowler, 45 ECAB 365 (1994).

9

The Board notes that an employee’s statement regarding the occurrence of an employing establishment incident
is of great probative value and will stand unless refuted by strong or persuasive evidence. Thelma Rogers, 42 ECAB
866 (1991).
10

John J. Carlone, supra note 3.

4

CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development of the medical evidence on the issues presented.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 28, 2014 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 17-0180
Issued: March 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2016 appellant filed a timely appeal of a September 26, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit decision of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish left foot, left leg,
and lower back injuries causally related to a June 6, 2016 employment incident.
FACTUAL HISTORY
On June 10, 2016 appellant then a 60-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on June 6, 2016 “totes” fell from a floor truck which caused her to lose her
balance and fall, injuring her left foot, leg, and lower back. She did not immediately stop work.

1

5 U.S.C. § 8101 et seq.

Appellant was treated in the emergency room on June 16, 2016 by Dr. Todd Hayes,
Board-certified in emergency medicine, who diagnosed low back pain and prescribed a pain
medicine. She was given a treatment pamphlet for neck and back pain. In a June 16, 2016 return
to work slip, Dr. Hayes noted treating appellant in the emergency room and advised that she
could return to work in one day. Appellant submitted several prescription receipts.
On July 1, 2016 appellant was treated by a nurse practitioner. The report noted a recent
fall that caused low back and hip pain and ice therapy was recommended. On July 1, 2016 the
nurse practitioner diagnosed left-sided low back pain with left-sided sciatica and referred
appellant for physical therapy. On August 4, 2016 she treated appellant for left-sided low back
pain with left-sided sciatica. On July 28, 2016 appellant was seen by a physical therapist for a
lumbar evaluation.
On July 1, 2016 Dr. Srilatha Gannavaram, a Board-certified internist, diagnosed leftsided low back pain with left-sided sciatica and referred appellant for physical therapy.
On August 18, 2016 appellant submitted a claim for compensation (Form CA-7) for
intermittent partial disability, for 1.95 hours of leave without pay (LWOP) for July 28, 2016 and
8 hours of LWOP for August 3 and 4, 2016. The employing establishment provided a time
analysis form (Form CA-7a) noting that appellant had used 1.95 hours of LWOP for July 28,
2016 and 8 hours of sick leave for August 3 and 4, 2016.
By letter dated August 19, 2016, OWCP advised appellant that her claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It indicated that her claim was administratively handled to allow medical payments up to
$1,500.00. However, the merits of the claim had not been formally adjudicated. OWCP advised
that because a claim for wage loss had been received, appellant’s claim would be formally
adjudicated. It requested that she submit additional information including a comprehensive
medical report from her treating physician which contained a reasoned explanation as to how the
specific work factors or incidents identified by appellant had contributed to her claimed injuries.
Appellant submitted an excuse slip dated July 28, 2016, from a provider whose signature
is illegible, who noted that appellant was excused from work secondary to attending physical
therapy.
In a September 12, 2016 attending physician’s report, Dr. Gannavaram noted that
appellant was injured on June 6, 2016 when she lost her balance and fell on her left hip. She
diagnosed low back pain with left-sided sciatica. Dr. Gannavaram checked a box marked “yes”
that appellant’s condition was caused or aggravated by an employment activity and indicated
“fall.” She noted that appellant was totally disabled from work. On September 12, 2016
Dr. Gannavaram saw appellant in her clinic.
In a September 26, 2016 decision, OWCP denied the claim finding that appellant failed to
submit medical evidence establishing that a medical condition was diagnosed in connection with
the accepted work incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that her actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
It is undisputed that on June 6, 2016, while working as a clerk, “totes” on a floor truck
fell causing appellant to lose her balance and fall. However, the Board finds that she failed to
submit sufficient medical evidence to establish that this work incident caused or aggravated her
diagnosed back condition. In a letter dated August 19, 2016, OWCP requested that appellant
submit a comprehensive medical report from her treating physician which included a reasoned
explanation as to how the accepted work incident had caused her claimed injury.
Appellant submitted an attending physician’s report from Dr. Gannavaram dated
September 12, 2016, who noted appellant was injured on June 6, 2016 when she lost her balance
and fell on her left hip. Dr. Gannavaram diagnosed low back pain with left-sided sciatica and
checked a box marked “yes” that appellant’s condition was caused or aggravated by an
employment activity and indicated “fall.” The Board has held that when a physician’s opinion
on causal relationship which consists only of checking “yes” to a form question, without
explanation or rationale, is of diminished probative value and is insufficient to establish a claim.5

2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

3

On July 1, 2016 Dr. Gannavaram diagnosed left-sided low back pain with left-sided
sciatica and referred appellant for physical therapy. Similarly, on September 12, 2016, she noted
treating appellant at her clinic. Dr. Gannavaram’s notes are insufficient to establish the claim as
she did not provide a history of injury6 or specifically address whether appellant’s employment
activities had caused or aggravated a diagnosed medical condition.7
Emergency room notes from Dr. Hayes dated June 16, 2016 diagnosed low back pain and
prescribed pain medicine. In a June 16, 2016 return to work note, he indicated treating appellant
in the emergency room and advised that she could return to work in one day. These notes are
insufficient to establish appellant’s claim as Dr. Hayes did not provide a history of injury8 or
specifically address whether her employment activities had caused or aggravated a diagnosed
medical condition.9
Appellant was treated by a nurse practitioner on July 1 and August 4, 2016, who
diagnosed left-sided low back pain with left-sided sciatica and referred appellant for physical
therapy. Similarly, on July 28, 2016 she was seen by a physical therapist for a lumbar
evaluation. The Board has held that notes signed by a nurse, nurse practitioner, or a physical
therapist are not considered medical evidence as they are not physicians under FECA.10 Thus,
these treatment records are of no probative medical value in establishing appellant’s claim.
The remainder of the medical evidence is of limited probative value as it fails to provide
a physician’s opinion on the causal relationship between appellant’s work incident and her
diagnosed low back condition.11 For this reason, this evidence is insufficient to meet her burden
of proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by

6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
7

A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
8

Supra note 6.

9

A.D., supra note 7.

10

See David P. Sawchuk, 57 ECAB 316, 320n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also Paul Foster, 56 ECAB
208 (2004) where the Board found a nurse practitioner was considered a physician under FECA.
11

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

4

rationalized medical opinion evidence.12 Appellant failed to submit such evidence and therefore
she has not met her burden of proof.
On appeal appellant indicated that the employing establishment was not concerned about
her injury and did not inquire if she needed medical treatment on the date of injury. She
indicated that she was misled by the forms needed and submitted all medical information to
OWCP in a timely manner. As found above, the medical evidence does not establish that
appellant has a diagnosed medical condition that is causally related to her accepted work
incident. She has not submitted a physician’s report which describes how the incident on June 6,
2016 caused or aggravated a low back condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish left foot, left
leg, and lower back injuries causally related to a June 6, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS, Barstow, CA, Employer
__________________________________________

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

Docket No. 21-1221
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from an April 6, 2021 merit decision
and a May 5, 2021 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 met his burden of proof to establish a recurrence
of medical treatment causally related to his accepted May 5, 2009 employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 24-year-old materials expediter, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2009 he injured his left knee when moving pallets of
material with the use of a pallet jack while in the performance of duty. Following a request for
surgery, OWCP formally adjudicated the claim and accepted left knee sprain, lateral collateral
ligament; old bucket handle tear of left medial meniscus and left knee contusion. Appellant
underwent OWCP-authorized left knee arthroscopic surgeries on July 23, 2009 and
October 27, 2016. OWCP paid him intermittent wage-loss compensation on the supplemental rolls
through November 21, 2016.
In a report dated May 17, 2017, Dr. Paul A. Stanton, an osteopath Board-certified in
orthopedic surgery, related that a final medical evaluation was performed at the request of
appellant. He related appellant’s medical history and physical examination findings. Dr. Stanton
noted that appellant had returned to full-duty work and that future medical care was not anticipated.
He concluded that appellant had reached a permanent and stationary level of disability.
Appellant’s last medical examination of record prior to his notice of recurrence of medical
treatment was conducted on December 1, 2017. In a report of even date, Dr. Amarilda
Christensen, a Board-certified occupational medicine specialist, performed a permanent
impairment evaluation and concluded that appellant had two percent permanent impairment of the
left lower extremity.2
On January 26, 2021 appellant filed a Form CA-2a alleging that he sustained a recurrence
of the need for medical treatment, commencing December 2, 2020 causally related to his accepted
left knee employment conditions. He asserted that it was difficult to bend, stoop, and climb stairs.
Appellant also noted that since he returned to work he could not seek medical treatment as his case
was closed.
In a development letter dated February 16, 2021, OWCP informed appellant of the
definition of a recurrence of a work-related medical condition for medical treatment and requested
that he submit additional evidence in support of his claim, including a physician’s opinion
supported by a medical explanation as to the relationship between h is current need for medical
treatment and the accepted employment conditions. It provided a questionnaire for his completion,
which posed questions regarding his medical treatment. 3 OWCP afforded appellant 30 days to
respond.
In a March 17, 2021 statement, appellant reported that he had experienced issues with his
left knee since his original injury, which had progressively worsened following the second surgery.

2
By decisions dated February 17, 2010 and Ma rch 6, 2018, OWCP granted appellant schedule award for one
percent permanent impairment of the left lower extremity, and an additional schedule award for two percent permanent
left lower extremity, respectively, for a total three percent permanent impairment of the left lower extremity.
3

OWCP advised appellant that, if a new traumatic work injury or occupational disease (Form CA-2) produced by
the work environment occurred, a new claim might need to be filed. This was true even if the new incident or exposure
involved the same part of the body as previously affected.

2

He noted that recent x-rays showed his knee was arthritic and narrowing as a result of his
arthroscopic surgeries and meniscus tear repair.
Appellant submitted reports from Dr. Benjamin M. Woodhead, an orthopedic surgeon,
dated February 19 and March 10, 2021. In his February 19, 2021 report, Dr. Woodhead noted that
appellant was seen for follow up six weeks’ status postsurgery, and his left knee. With regard to
the left knee, he noted appellant’s medical history, presented examination findings, and diagnosed
left knee patellofemoral syndrome and left knee mild arthritis. Dr. Woodhead indicated that
appellant had some irritation in the knee, but that it was difficult to say if his patellofemoral
symptoms stemmed from his prior surgeries or work-related injuries without having all the records.
In the March 10, 2021 report, he indicated that appellant had anterior knee pain, patellofemoral
symptoms; mild-to-moderate degenerative changes on x-rays; left knee patellofemoral syndrome,
mild arthritis. Dr. Woodhead reiterated that he was unable to answer questions regarding causal
relationship as he did not have all of appellant’s records.
By decision dated April 6, 2021, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish a recurrence of the need for medical
treatment due to a worsening of his accepted employment injuries. It found that there was no
medical evidence to support that the claimed recurrence was due to the accepted work -related
injury of May 5, 2009.
On April 26, 2021 appellant requested reconsideration. He indicated that he was never
notified by OWCP that his case was closed for medical treatment and argued that it should not
have been closed. Appellant requested that his case be reopened, and that the acceptance of his
claim be expanded to include osteoarthritis and patellofemoral injuries and medical treatment for
such conditions. Duplicative copies of evidence previously of record was submitted.4
By decision dated May 5, 2021, OWCP denied appellant’s request for reconsideration. 5
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment f or the accepted condition or injury when there is no
accompanying work stoppage. 6 An employee has the burden of proof to establish that he or she

4

This included June 2, 2012 and August 13, 2016 magnetic resonance imaging (MRI) scans of the left knee and
Dr. Woodhead’s February 19 and March 10, 2021 reports.
OWCP explained why an “October 26, 2020” medical report from Dr. Louis C. Redix, Jr., an orthopedic surgery
specialist, supported case closure. The Board notes that the medical report from Dr. Redix OWCP referenced is dated
October 26, 2009, not October 26, 2020. In his October 26, 2009 report, Dr. Redix, indicated, “The patient will not
require any additional medical treatment or follow up. The patient is not a surgical candidate nor is he likely to become
one. There is no need for continued medication or physical therapy. No further intervention will be needed or
anticipated.” This report was used in the calculation of appellant’s February 17, 2010 schedule award. See supra
note 2.
5

6

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 8 To meet this burden, the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history , supports that the
condition is causally related and supports his or her conclusion with sound medical rationale. 9
Where no such rationale is present, medical evidence is of diminished probative value. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury.
In a report dated May 17, 2017, Dr. Stanton, appellant’s treating physician, related that a
final medical evaluation was performed at appellant’s request. He noted that appellant had
returned to full-duty work and that future medical care was not anticipated. Following this report,
the other medical evidence received of record prior to appellant’s request for further medical
treatment did not document further medical treatment, but evaluated appellant for schedule award
purposes. The Board therefore finds that appellant’s claim for recurrence of medical condition
was made more than 90 days after release from medical care by Dr. Stanton, and therefore his
claim for recurrence of medical treatment must be supported by medical evidence of a causal
relationship between his current condition and the accepted May 5, 2009 employment injury. 11
In his February 19, 2021 report, Dr. Woodhead noted the medical history of appellant’s
left knee, presented examination findings, and diagnosed left knee patellofemoral syndrome and
left knee mild arthritis. He indicated that appellant had some irritation in the knee, but opined that
it was difficult to say if appellant’s patellofemoral symptoms stemmed from his prior surgeries or
work-related injuries without having all the records. In the March 10, 2021 report, Dr. Woodhead
reiterated that he was unable to answer the causal relationship of appellant’s anterior knee pain,
patellofemoral symptoms; mild-to-moderate degenerative changes on x-rays; left knee
patellofemoral syndrome, mild arthritis as he did not have all of appellant’s records and films. His
reports are of limited probative value as he was unable to offer an opinion on the issue of causal
relationship. The Board has held that a medical report is of no probative value on a given medical
7

M.P., Docket No. 19-0161 (issued August 16, 2019); E.R., Docket No. 18-0202 (issued June 5, 2018).

8

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket
No. 15-0778 (issued June 25, 2015).
10

M.P., supra note 7; Michael Stockert, 39 ECAB 1186 (1988).

11

Supra note 9.

4

matter if it does not contain an opinion on that matter. 12 Thus, these reports are insufficient to
establish appellant’s recurrence claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care on or after December 2, 2020 causally
related to his accepted employment conditions, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 15 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits. 16

12

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);
Charles H. Tomaszewski, 39 ECAB 461 (1988).
13

5 U.S.C. § 8128(a); T.T., Docket No. 19-0319 (issued October 26, 2020); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
14

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). 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.
16

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant argued that OWCP prematurely closed his case as he was not released from
medical care. However as previously discussed, Dr. Stanton in his May 17, 2017 report released
appellant from medical care. Appellant’s allegations that he was not released from medical care
do not demonstrate that OWCP erroneously applied or interpreted a specific point of law and do
not constitute a valid new legal argument. Consequently, the Board finds that appellant was not
entitled to a review of the merits based on the first or second above -noted requirements under
20 C.F.R. § 10.606(b)(3).17
Appellant also failed to submit relevant and pertinent new evidence in support of his
reconsideration request. He submitted duplicative evidence previously of record. Evidence which
repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a case.18 Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury. The Board further finds that OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

17

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
18

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6 and May 5, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 13-884
Issued: August 19, 2013

Case Submitted on the Record

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

JURISDICTION
On March 4, 2013 appellant filed a timely appeal from a November 14, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation and a February 21, 2013 nonmerit decision denying reconsideration. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over merits of this case. On appeal, appellant indicated that she was
enclosing a copy of her letter of explanation along with medical documentation that she sent but
was supposedly never received. The Board may not consider new evidence for the first time on
appeal that was not before OWCP at the time it issued its final merit decision in the case.2

1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant’s medical condition is causally related to the
August 13, 2012 work incident or factors of her employment; and (2) whether OWCP properly
denied her request for further merit review of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 13, 2012 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim alleging that she injured her lower back and experienced difficulty standing and walking
when she picked up a tray of mail. She stopped work that day. Appellant returned to full-time
regular duty with no restrictions on August 31, 2012.
Medical reports were received from Dr. Michael J. Halperin, a Board-certified orthopedic
surgeon. In an August 23, 2012 duty status report, Dr. Halperin noted that he examined
appellant on August 14, 2012 with a positive straight leg raise on the right leg. He diagnosed
right leg radiculopathy and opined that she was disabled from work. In an August 24, 2012
Form CA-16, Dr. Halperin listed that appellant underwent a discectomy at L4-5 in October 2011
and a magnetic resonance imaging (MRI) scan showed central canal stenosis at L3-4 with no
discectomy. He noted that on August 13, 2012, while at work, she experienced pain when
carrying something heavy. Dr. Halperin diagnosed right leg radiculopathy with L3-4 canal
stenosis and indicated that appellant was unable to resume work. On August 29, 2012 he
reported that she walked with a nonantalgic gait and was neurovascularly intact to the bilateral
lower extremities. Dr. Halperin noted that an MRI scan revealed lateral rescess stenosis on the
left at L4-5. He opined that appellant was much improved and that she would like to return to
work. In an August 29, 2012 work restriction form, Dr. Halperin advised that she could return to
full duty on August 31, 2012.
In an August 29, 2012 Form CA-17, duty status report, Kathleen Billings, a physician’s
assistant, noted that on August 13, 2012 appellant lifted a heavy object at work and experienced
low back and leg pain. She diagnosed right leg radiculopathy as due to the injury and opined
that appellant was able to return to full-time full-duty work.
In an October 9, 2012 letter, OWCP advised appellant of the deficiencies in her claim.3 It
requested that she provide medical evidence from a qualified physician who provided a detailed
well-rationalized opinion relating her diagnosed L3-4 spinal stenosis to her work duties and
address any preexisting symptoms or conditions which may be related to her current condition.
No additional evidence was received.
By decision dated November 14, 2012, OWCP denied appellant’s claim for
compensation. It accepted that the August 13, 2012 work incident occurred as alleged but found
that the medical evidence did not establish that her medical condition was causally related.

3

OWCP noted that appellant’s claim was originally received as a simple, uncontroverted case resulting in
minimal or no lost time from work and payment was approved for limited medical expenses without formal
adjudication.

2

On February 6, 2013 OWCP received appellant’s reconsideration request. In a
January 24, 2013 letter, appellant provided details about the mechanism of injury and the
medical care she received. Her symptoms started getting worse and she received epidural
injections. When appellant received OWCP’s denial, she thought it was for the epidural
injections and not the entire claim. She indicated that she was enclosing Dr. Halperin’s MRI
scans as well as other documentation from the August injury. No additional evidence was
received.
By decision dated February 21, 2013, OWCP denied appellant’s request for
reconsideration on the grounds that she did not advance a point of law or submit new and
relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue.6 The medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty8 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
ANALYSIS -- ISSUE 1
Dr. Halperin saw appellant on August 14, 2012 and excused her from work due to right
leg radiculopathy. He offered no opinion on causal relationship or discussion of the work
incident. In subsequent reports, Dr. Halperin noted that appellant was carrying something heavy
at work when she experienced new pain in her back and leg. He diagnosed right leg
radiculopathy with L3-4 canal stenosis on the left. However, Dr. Halperin did not offer a
medical opinion on the subject of causal relationship. He did not discuss, with medical rationale,
4

5 U.S.C. § 8102(a).

5

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

6

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

7

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

8

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

9

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

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how the August 13, 2012 lifting/carrying incident caused or aggravated any diagnosed condition.
While Dr. Halperin noted that appellant had carried something heavy at work, he did not provide
specific details as to the weight of the tray she carried, nor did he explain how carrying the tray
of mail would have caused or aggravated the low back condition. Without an affirmative
opinion with medical rationale as to how any diagnosed condition was caused or aggravated by
the August 13, 2012 incident, his reports do not establish the critical element of causal
relationship.10
A medical issue such as causal relationship can only be resolved through the submission
of probative medical evidence from a physician.11 While Ms. Billings, a certified physician’s
assistant, opined in an August 29, 2012 duty status report that appellant’s right leg radiculopathy
was due to the injury, her report does not constitute competent medical evidence as physician’s
assistants are not considered physicians as defined under section 8101(2) of FECA.12
As there is no medical evidence which offers a well-reasoned explanation of how the
August 13, 2012 incident caused a diagnosed medical condition, appellant has not met her
burden of proof to establish her claim for compensation benefits. The Board will therefore
affirm OWCP’s November 14, 2012 decision to deny her claim.
Appellant may submit new evidence or argument as part of a formal 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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,13
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.14 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.15 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
10

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
11

Gloria J. McPherson, 51 ECAB 441 (2000).

12

5 U.S.C. § 8101(2); E.K., Docket No. 09-1827 (issued April 21, 2010) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); Allen C.
Hundley, 53 ECAB 551, 554 (2002).
13

Under section 8128 of FECA, the 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).
14

20 C.F.R. § 10.606(b)(1)-(2).

15

Id. at § 10.607(a).

4

The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record16 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.17
ANALYSIS -- ISSUE 2
Appellant did not identify a specific point of law or show that OWCP erroneously applied
or interpreted it. She also did not advance a new and relevant legal argument. In her request for
reconsideration, appellant provided mechanism and history of her injury and offered an
explanation that she thought OWCP was denying her request for epidural injections and not the
entire claim. However, she did not advance a relevant legal argument not previously considered
by OWCP. Thus appellant has not shown that OWCP erroneously applied or interpreted a
specific point of law and she has not advanced a relevant legal argument not previously
considered by OWCP.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence not previously considered by OWCP, but appellant submitted no such evidence with
her reconsideration request. While appellant indicated in her reconsideration request that she
was enclosing additional evidence from Dr. Halperin and other documentation from the August
injury, no such evidence was received. Accordingly, the Board finds that she did not meet any of
the necessary requirements and she is not entitled to further merit review.18
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
medical condition is causally related to the August 13, 2012 work incident. The Board also finds
that OWCP properly denied her reconsideration request.

16

See A.L., Docket No. 08-1730 (issued March 16, 2009). See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

17

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

18

See L.H., 59 ECAB 253 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2013 and November 14, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________
Appearances:
Leslie Nitsch, for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1242
Issued: March 17, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant sought an appeal from a purported July 14, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1242.2
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 3
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal. 4
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

This case has previously been before the Board. Docket No. 14-557 (issued April 6, 2015).

3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
4

The Board notes that the case record does not contain a final adverse decision of OWCP
dated July 14, 2021. The case record does contain a letter from OWCP dated July 14, 2021 to
appellant; however, it merely apprised appellant of the appeal rights accompanying the previously
issued decisions and that no further action would be taken until he specified w hat avenue of appeal
he wished to pursue..5 The most recent final adverse decision of OWCP was dated August 30,
2017, more than 180 days before appellant’s current August 17, 2021 appeal and is not subject to
review by this Board.6 As there is no final adverse decision of OWCP over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1242 must
be dismissed. 7 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1242 is dismissed.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
6

See supra note 4.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
7

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Sister Bay, WI, Employer
)
___________________________________________ )
J.S., Appellant

Appearances:

Docket No. 08-1864
Issued: March 18, 2009

Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director

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

JURISDICTION
On June 23, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated June 3, 2008 which affirmed
the Office’s October 23, 2007 decision that terminated her compensation. Pursuant to 20 C.F.R.
§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether the Office properly terminated appellant’s compensation
benefits effective October 23, 2007.
FACTUAL HISTORY
On May 9, 2006 appellant, then a 50-year-old part-time flexible clerk, filed an
occupational disease claim alleging that she sustained an injury to her neck as a result of bending
and unloading mail in the performance of duty. She first realized the disease or illness was
caused or aggravated by her employment on October 14, 2005. Appellant stopped work on
October 17, 2005. The Office accepted her claim for temporary aggravation of spinal

osteoarthritis and cervical disc protrusions at C3-4 and C6-7.1 Appellant received appropriate
compensation benefits.
In reports dated June 9 and 21, 2006, Dr. Jonathan S. Citow, a Board-certified
neurological surgeon and treating physician, noted that appellant’s neck pain was worsening and
exacerbated by repetitive heavy lifting at work. He diagnosed disc protrusions at C3-4 and C6-7
surrounding her C4-6 cervical fusion. Dr. Citow advised that appellant was unable to work and
requested authorization for a two level cervical discectomy and fusion with extension of fusion
mass.
On August 1, 2006 the Office requested that an Office medical adviser address whether
the request for cervical surgery was medically necessary due to the work-related condition. On
August 9, 2006 the Office medical adviser noted that appellant had a history of multiple sclerosis
and was post C4-5 and C5-6 anterior cervical decompression and fusion (ACDF). He advised
that appellant developed acute bilateral lower extremity weakness and numbness and was
diagnosed with multiple sclerosis in mid October 2005. The Office medical adviser indicated
that a magnetic resonance imaging (MRI) scan of the cervical spine revealed spinal stenosis with
cord compression at C3-4; however, her physician indicated that he did not believe that it was
the cause of her condition, “especially with her being hypo- and not hyper-reflexic.” He was
unable to determine whether surgery was medically warranted and recommended a neurological
examination.
In a September 22, 2006 report, Dr. Erik M. Borgnes, a Board-certified diagnostic
radiologist, advised that appellant had severe central spinal stenosis at C3-4 due to a disc
protrusion and a somewhat small spinal canal. Dr. Borgnes related that appellant had evidence
of significant spinal cord deformity at the C3-4 level which was typically associated with
cervical myelopathy and myelomalacia (damage to the spinal cord) at the C5 level on the left.
The Office also received reports from Dr. Joan A. Traver, Board-certified in internal medicine,
who indicated that appellant needed surgery. On June 22, 2006 Dr. Traver noted that appellant
had a long history of osteoarthritis of her spine which required surgery in the past. In a
September 24, 2006 report, Dr. Maria Antoniou, Board-certified in internal medicine, found that
appellant had severe central spinal stenosis at C3-4 secondary to central disc protrusion. She
noted that appellant also had posterior osteophytosis at the C4 level, and narrowing of the neural
foramen carrying the left C6 nerve which were manifested by severe and worsening neck pain
with bilateral upper and lower extremity numbness and weakness. Dr. Antoniou noted that
appellant was recently diagnosed with multiple sclerosis in October 2005, which complicated her
current condition. She advised that the cervical discectomy was warranted.
On November 2, 2006 the Office referred appellant to Dr. Lawrence Frazin, a Boardcertified neurological surgeon, to determine whether appellant’s need for a cervical surgery was
for the work-related or nonwork-related medical condition. In a December 11, 2006 report,
Dr. Frazin reviewed appellant’s history of injury and treatment. Although he opined that the
surgery at C3-4 was medically necessary, he advised that it was not due to the work-related
injury.
1

The record reflects that appellant has nonwork-related multiple sclerosis, a cervical discectomy and fusion and a
hysterectomy.

2

On January 5, 2007 the Office advised appellant that a follow-up examination was
needed to determine if her work-related condition had resolved or whether she had residuals of
the work-related injury. In a February 20, 2007 report, Dr. Frazin reiterated appellant’s history
of injury and treatment. He diagnosed cervical spondylosis without myelopathy and multiple
sclerosis. On examination, there was no evidence to support the previous diagnosis of
myelopathy from spinal cord compression. Dr. Frazin did not believe the symptomatic cervical
spondylosis was related to the work accident in question and explained that the most dramatic
x-ray changes were at C3-4 which would cause the neck and shoulder pain, but there was no
evidence of spinal cord myelopathy. Appellant had myelomalacia at C6 at the previous surgical
site that could be influencing some of the findings. Dr. Frazin noted that appellant’s
coordination problems and rapid alternating movement problems were more consistent with
multiple sclerosis than with cervical radiculopathy or myelopathy. He added that “once a person
has a fusion it puts additional stress at the adjacent nonfused levels which is the case here at both
C3-4 and C6-7. This can, on its own, cause degenerative changes at those adjacent levels which
is the case here.” Dr. Frazin opined that these diagnoses were not medically connected to the
work accident. He found that appellant’s cervical spondylosis was not related to her work injury.
Dr. Frazin explained that she had only worked at the job nine months and actually became
symptomatic in August 2005. He advised that appellant’s job required strength and movement
of the arms and shoulders but did not require undue strain or motion of the cervical spine and its
supporting structure. Dr. Frazin approved of the proposed surgery “not because of a workrelated injury but rather a progression of an underlying degenerative spine condition that was
aggravated/accelerated by her previous surgery.” He added that it was due to her underlying
cervical spondylosis and multiple sclerosis, neither of which were related to or caused by the
accident of October 11, 2005.
On May 3, 2007 Dr. Citow performed a cervical discectomy.
The Office found a conflict in opinion between Dr. Citow and Dr. Frazin regarding the
extent and duration of the accepted work-related aggravation and residuals. On July 10, 2007 it
referred appellant, together with a statement of accepted facts and the medical record to
Dr. Kenneth C. Yuska, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
In a September 7, 2007 report, Dr. Yuska reviewed appellant’s history of injury and
treatment and conducted an examination. He indicated that the cervical spine examination
revealed restriction of movement and two cervical incisions that were well healed. Dr. Yuska
advised that the incision from 1996 was hardly noticeable and that, slightly above the incision,
from May 3, 2007, was well healed. Appellant’s cervical range of motion was 30 percent of
flexion with extension of 20 percent. Dr. Yuska noted that the neurological examination was
abnormal. He attributed appellant’s complaints to multiple sclerosis as opposed to cervical
spondylosis. Dr. Yuska advised that the length of time that appellant had worked at her job was
not long enough to provide a work exposure to cause lasting injury. He noted that the cervical
surgery was medically reasonable but not necessary due to her work injury. Dr. Yuska stated
that the wear and tear of the adjacent levels and the popping sensations that appellant had in her
neck were due to degeneration of the discs, particularly at C6-7. Regarding appellant’s
neurological complaints, he explained that her symptoms waxed and waned which was typical
for multiple sclerosis. Dr. Yuska agreed with Dr. Frazin with regard to the need for surgery,
which he indicated was medically reasonable, but not related to the accepted work exposure. He

3

explained that appellant had a history of cervical spondylosis with surgery at the C4 and C5, and
a fusion from C4-6 in 1996 or 1997. Dr. Yuska noted that an after effect of surgery was that the
adjacent levels had worn out at the C3 and C6 disc levels and became symptomatic in 2005. He
noted that the symptoms were predominantly neck pain and popping. Dr. Yuska also indicated
that the waxing and waning of neurological dysfunction was consistent with multiple sclerosis.
He explained that, with multiple sclerosis, the neurologic picture would typically change from
time to time. Dr. Yuska stated that the medical records revealed that appellant’s neurological
findings included cranial nerves, her balance, and numbness and weakness of the extremities.
These symptoms had come and gone through the various examinations and was consistent with
multiple sclerosis. Dr. Yuska reiterated that the recent surgery was not related to the workrelated aggravation of October 11, 2005. He explained that the fact that appellant’s neurologic
symptoms recurred and relapsed was consistent with multiple sclerosis. Dr. Yuska advised that,
if the cervical condition had been permanently aggravated by her work, there would have been a
permanent neurological change. These changes would have been characterized by spasticity of
the lower extremities, which was not the case with appellant. Dr. Yuska opined that appellant
was not able to return to work as a mail clerk where heavy lifting was involved; however, her
inability to return to work was due to her preexisting neurological problems. He indicated that
she had reached maximum medical improvement and completed a work capacity evaluation form
advising that appellant could work with restrictions.
On September 19, 2007 the Office issued a termination of compensation claim on the
basis that the weight of the medical evidence, represented by Dr. Yuska, established that
appellant no longer had any disability or residuals due to her accepted work-related conditions.2
By decision dated October 23, 2007, the Office terminated appellant’s compensation
benefits effective October 23, 2007.
On November 12, 2007 appellant’s representative requested a telephonic hearing, which
was held on March 6, 2008.
In a November 2, 2007 report, Dr. Citow advised that appellant had a previous C4-6
cervical fusion and then developed spinal cord compression at C3-4 and C6-7 surrounding this
fusion. He noted that she had a C3-7 construct in May 2007. Appellant had been doing
repetitive heavy lifting at work and Dr. Citow opined that this “certainly would cause
progression of the disease rostral and caudal to the previous fusion.” Dr. Citow advised that
appellant was doing well until her symptoms became bothersome due to heavy lifting at work.
He indicated that she developed bilateral, upper and lower extremity numbness and weakness.
Dr. Citow explained that it could not be assumed that appellant’s multiple sclerosis was the cause
of all of her problems. When he saw her on October 12, 2007, five months after her surgery, she
was doing much better. Dr. Citow did not believe that multiple sclerosis was the cause of many
of her symptoms but, rather, he attributed them to the work injury.
In a January 8, 2008 report, Dr. Daniel R. Wynn, a Board-certified psychiatrist and
neurologist, noted that he saw appellant on July 31, 2007. Appellant’s problems related to her
cervical disc disease and low back and were “likely related to the very heavy lifting she was
2

An earlier notice dated March 19, 2007, was prematurely issued.

4

required to do while working for the [employing establishment].” Despite several visits over two
years, she had not had further exacerbations of multiple sclerosis. Dr. Wynn disagreed that the
waxing and waning of appellant’s symptoms meant they were due to multiple sclerosis. He
advised that as a “specialist in multiple sclerosis, this is not my opinion. Individuals with
multiple sclerosis may be more sensitive to physical conditions.” Dr. Wynn opined that
appellant’s physical conditions were related to her work injuries. He also added that “there
would be no reason that she would not be able to work related to multiple sclerosis.”
By decision dated June 3, 2008, the Office hearing representative affirmed the
October 23, 2007 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The Federal Employees’ Compensation Act5 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.6 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.7
ANALYSIS
The Office determined that a conflict of medical opinion existed regarding the extent and
duration of the accepted work-related aggravation and work ability based on the opinions of
Dr. Citow, appellant’s physician, who supported an ongoing employment-related condition and
disability, and Dr. Frazin, an Office referral physician, who opined that the employment-related
condition had resolved. Therefore, the Office properly referred appellant to Dr. Yuska, a Boardcertified orthopedic surgeon, for an impartial medical examination to resolve the conflict.8
The Board finds that Dr. Yuska’s September 7, 2007 report is sufficiently well
rationalized and based upon a proper factual background such that it is entitled to special weight
3

Curtis Hall, 45 ECAB 316 (1994).

4

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

5

5 U.S.C. §§ 8101-8193, 8123(a).

6

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

7

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

8

Id.

5

in establishing that residuals of appellant’s employment injury had ceased. Dr. Yuska provided
an extensive review of appellant’s medical history, reported his examination findings and
explained that appellant’s continuing findings and residuals were due to her preexisting multiple
sclerosis and degenerative cervical discs. He found no basis on which to attribute any continuing
residuals to appellant’s accepted employment conditions. When an impartial medical specialist
is asked to resolve a conflict in medical evidence, his opinion, if sufficiently well rationalized
and based on a proper factual background, must be given special weight.9 The Board finds that
Dr. Yuska’s report represents the weight of the medical evidence and established that there were
no ongoing objective findings of residuals of accepted employment injury.
Appellant subsequently requested a hearing and submitted additional evidence. The
additional evidence included a November 2, 2007 report, from Dr. Citow, her attending
physician, who opined that appellant’s condition was work related and not related to her multiple
sclerosis.10 However, Dr. Citow essentially reiterated previously stated findings and conclusions
regarding appellant’s condition. As he was on one side of the conflict that had been resolved, the
additional reports, in the absence of any new findings or rationale, from appellant’s doctor were
insufficient to overcome the weight accorded to the report of the impartial medical examiner or
to create a new conflict.11
Appellant also provided a January 8, 2008 report from Dr. Wynn, who indicated that he
was a specialist in multiple sclerosis. Dr. Wynn related that appellant’s condition was “likely
related to the very heavy lifting she was required to do while working for the [employing
establishment].” However, he did not provide any objective findings to support this conclusion,
nor did he explain how this condition would arise after only a few months. Thus, at best this
provides equivocal support for causal relationship and is insufficient to meet appellant’s burden
of proof.12
Accordingly, Office met its burden of proof to justify termination of benefits effective
October 23, 2007.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective October 23, 2007.

9

See supra note 6.

10

She also indicated that appellant had marked depression; however, depression is not an accepted condition.

11

See Guiseppe Aversa, 55 ECAB 164 (2003); Jaja K. Asaramo, 55 ECAB 200 (2004).

12

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2008 decision of the Office of Workers’
Compensation Programs’ hearing representative is affirmed.
Issued: March 18, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7