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

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

Docket No. 21-1353
Issued: March 21, 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 September 13, 2021 appellant filed a timely appeal from a May 17, 2021 merit decision
and a September 8, 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. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 8, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for a review of the written record as
untimely filed, pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On April 7, 2021 appellant, then a 30-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced a left knee strain due to factors of his federal
employment, including repetitive walking of 20,000 steps per day, stepping into his van repeatedly,
and climbing many flights of stairs daily. He indicated that he first became aware of his condition
and first realized its relation to his federal employment on April 4, 2021. Appellant stopped work
on April 5, 2021.
In an April 14, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence. It did not receive a response.
An activity prescription form dated April 6, 2021 from Katherine Hester, an advanced
registered nurse practitioner, noted that appellant was examined following an April 4, 2021
workplace incident. She diagnosed left knee sprain and advised that he could return to work.
By decision dated May 17, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment as it was rendered by
Ms. Hester . It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On July 2, 2021 appellant was seen by Dr. Marilyn Nayan, a Board-certified family
medicine physician, with ongoing complaints of lower back and leg pain relating to his official
duties as a mail carrier. She indicated that his current symptoms began on June 27, 2021, but that
he had been experiencing pain for six months. Dr. Nayan diagnosed a strain of the muscle and
tendon of the lower back, and radiculopathy in the lumbar region. In duty status reports (Form
CA-17) dated July 2, 9, 16 and 2021, she provided clinical findings of strain of muscle, fascia and
tendon of the lower back and lumbar radiculopathy related to a June 27, 2021 work injury.
Dr. Nayan advised that appellant could return to work with restrictions.
In a diagnostic report dated July 2, 2021, Dr. Aamer Farooki, a Board-certified radiologist,
performed an x-ray of the lumbar spine, which revealed no acute abnormalities.
On July 9, 2021 appellant presented in follow up to Dr. Nayan and related that his
symptoms had improved with medication.
On August 10, 2021 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
In a July 16, 2021 note, Dr. Nayan noted that appellant’s condition was exacerbated by
prolonged walking or standing while working. She further indicated that he could return to work
with limited duties.
2

An August 6, 2021 follow-up note from Dr. Nayan related appellant’s ongoing symptoms
and improvement with medication. In a Form CA-17 of even date, she indicated that he could
return to work.
On August 20, 2021 appellant was seen by Dr. Nayan in follow up. Dr. Nayan noted that
his pain symptoms increased after returning to full-duty work, and further noted that prolonged
walking and carrying heavy bags aggravated his condition. She diagnosed a lumbar strain without
a herniated disc. In a Form CA-17 of even date, Dr. Nayan indicated that appellant could return
to work with restrictions.
By decision dated September 8, 2021, OWCP denied appellant’s request for a review of
the written record as untimely filed, finding that his request was not made within 30 days of the
May 17, 2021 OWCP decision as it was postmarked on August 10, 2021. It further exercised
discretion and determined that the issue in this case could equally well be addressed by a request
for reconsideration before OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or con dition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.7

3

Supra note 1.

4

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

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician ’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted an activity prescription f orm dated April 6,
2021 from Ms. Hester, an advanced registered nurse practitioner, who diagnosed a left knee sprain
following a workplace incident on April 4, 2021. The Board, however, has held that medical
reports signed solely by a nurse practitioner are of no probative value as such providers are not
considered physicians as defined under FECA. 9 This evidence, therefore, is insufficient to
establish appellant’s burden of proof.
As the medical evidence of record is insufficient to establish a diagnosed medical condition
causally related to the accepted factors of appellant’s federal employment, the Board finds that he
has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”10
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a

8

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

9

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FEC A); see
also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse
practitioners are not considered physicians under FECA).
10

5 U.S.C. § 8124(b)(1).

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representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for a hearing or review of the written record
must be made within 30 days of the date of the decision for which review is sought. 13 Because
appellant’s request was postmarked on August 10, 2021, it post-dated OWCP’s May 17, 2021
decision, by more than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled
to a review of the written record as a matter of right. 14
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 15 The Board finds that, in the September 8, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.16 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record pursuant to
5 U.S.C. § 8124(b) as untimely filed.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment. The Board
11

20 C.F.R. §§ 10.616, 10.617.

12

Id. at § 10.616(a).

13

Supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
14

See P.C., Docket No. 19-1003 (issued December 4, 2019).

15

Id.

16

Id.

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further finds that OWCP properly denied his request for a review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the May 17 and September 8, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 11-1324
Issued: January 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 10, 2011 appellant, through her attorney, filed a timely appeal from a March 17,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
her claim for a recurrence. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of total disability
commencing June 24, 2005 causally related to a May 1, 2003 employment injury.
On appeal, appellant’s attorney contends that the March 17, 2011 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 2, 2003 appellant, then a 40-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she developed carpal tunnel syndrome due to factors of her
federal employment, including constant typing and computer work. OWCP accepted the claim
for bilateral carpal tunnel syndrome. It authorized a right carpal tunnel release performed on
July 3, 2003 and a left carpal tunnel release performed on August 7, 2003.
On July 5, 2005 appellant filed a notice of recurrence. She contended that constant and
repetitious work by typing on a computer and use of her hands caused a recurrence of her
bilateral carpal tunnel syndrome. The employing establishment stated that appellant was
provided light duty effective September 8, 2003. Appellant was restricted from lifting more than
five pounds, doing any type of repetitive task for over an hour and a half and was given frequent
breaks throughout the day.
On June 24, 2005 Dr. Scott Greenfield, a Board-certified family medicine physician,
diagnosed carpal tunnel syndrome. He obtained a history that appellant’s supervisor had been
making appellant do an extreme amount of repetitive-type activities which caused wrist swelling
and pain. Dr. Greenfield released appellant to light duty effective June 27, 2005 and specified
that she should work no more than four days a week for the next nine weeks. He advised that
she could return to full duty on August 27, 2005.
In a June 27, 2005 attending physician’s report, Dr. Greenfield reiterated his diagnosis
and marked a check box indicating that appellant’s condition was caused by her employment
activity.
On July 13, 2005 appellant accepted an offer of limited duty effective June 24, 2005 with
the following restrictions: no lifting more than five pounds; repetitive tasks not to extend more
than one and a half hours and frequent breaks due to hand/arm pain.
In a September 23, 2005 attending physician’s report, Dr. Greenfield reiterated his
diagnosis and indicated that appellant would need to work four days a week for the next nine
weeks.
On September 26, 2005 appellant filed a second notice of recurrence, claiming that her
work duties of constant typing, writing and boxing cases for shipment were aggravating her
carpal tunnel condition.
By letter dated October 3, 2005, the employing establishment requested a second opinion
examination. It stated that appellant returned to full duty on September 16, 2005. Subsequently,
appellant had taken every Friday off. The employing establishment conteded that she had not
submitted medical documentation supporting leave without pay nor a narrative from her doctor
justifying why she needed every Friday off.
In an October 3, 2005 report, Dr. T. Paul McDermott, Jr., a Board-certified orthopedic
surgeon, diagnosed possible recurrent carpal tunnel syndrome. He reported that appellant did
extremely well after her surgeries and then after six months her symptoms began to recur.
Appellant was working four days a week and was concerned that her typing and hand use were
2

aggravating her symptoms. Dr. McDermott released her to a four-hour workday and made no
change to her work status as prescribed by Dr. Greenfield.
On October 10, 2005 Dr. Douglas A. Wayne, a Board-certified physical medicine and
rehabilitation physician, found a normal electrodiagnostic examination without evidence for
carpal tunnel syndrome, polyneuropathy or radiculopathy involving the bilateral upper extremity
motor axons.
On November 14, 2005 Dr. McDermott opined that appellant seemed to be doing well
with her current work status.
In attending physician’s reports dated November 14, 2005 and February 27, 2006,
Dr. McDermott reiterated his diagnosis and released appellant to light duty four days a week,
Monday to Thursday, until a follow-up and permanent work restrictions were applied.
Dr. McDermott referred appellant for a functional capacity evaluation (FCE), which she
underwent on April 24, 2006 at Tidewater Physical Therapy, Inc. for a permanent impairment
rating with respect to her residuals associated with bilateral carpal tunnel releases. Appellant’s
residual functional capacity was adequate for performance of the essential job tasks associated
with her usual and customary job as a secretary without formal restrictions and with some
accommodations.
On May 11, 2006 Dr. McDermott concurred with the FCE and recommended that the
informal and occasional restrictions from the FCE be used as guidelines for appellant’s
employment and suggested that she be placed on a four-day workweek schedule in order to
maximize her function. In a May 19, 2006 report, he indicated that he released her to regular
work on May 4, 2006.2
Appellant submitted a January 30, 2007 attending physician’s report by Dr. McDermott,
who reiterated his diagnosis and released her to regular duty on May 11, 2006 with the
recommendation that she be placed on a four-day workweek from Monday to Thursday with
permanent restrictions based on the FCE.
By letter dated May 14, 2009, OWCP notified appellant of the deficiencies of her claim
and requested a comprehensive medical report from her treating physician, not an attending
physician’s report, which supported and included appropriate work restrictions with a statement
as to when she would be released back to full duty without restrictions. It allotted 30 days for
her to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted a May 21, 2009 report by Dr. McDermott, who
reiterated his diagnosis and released her to light work effective May 11, 2006 with the four-day
workweek and FCE restrictions recommendation.

2

By decision dated October 25, 2006, OWCP denied appellant’s claim for a schedule award on the basis that the
medical evidence of record was not sufficient to support that her May 1, 2003 employment injury resulted in a
permanent impairment to her left and right upper extremities.

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By letter dated July 28, 2009, OWCP requested additional factual and medical evidence
from appellant and requested that she submit a Form CA-2a notice of recurrence to the
employing establishment, who would then send it to OWCP. It allotted 30 days for her to submit
additional evidence and respond to its inquiries.
Appellant submitted a notice of recurrence dated August 18, 2009. She indicated that
after returning to work following the original injury she had permanent limitations on lifting and
pushing heavy objects and frequent breaks in order to help relieve carpal tunnel pain and
inflammation. Appellant reported that her job hours had been shortened in order to help her cope
with her chronic symptoms.
By decision dated November 3, 2009, OWCP denied appellant’s claim for a recurrence of
total disability. It found that the medical evidence submitted was insufficient to establish that
she sustained a recurrence of disability due to a withdrawal of a modified-duty assignment made
specifically to accommodate her employment injury. It noted that the FCE was no longer valid
and a rationalized medical report was required.
On November 10, 2009 appellant, through her attorney, requested a review of the written
record.
By decision dated February 22, 2010, OWCP’s hearing representative affirmed the
November 3, 2009 decision. The medical evidence was found not sufficient to establish a
change in the nature and extent of the employment-related condition and no evidence of any
changes in the nature and extent of the previously recognized limited-duty assignment.
On April 14, 2010 appellant, through her attorney, requested reconsideration and stated
that there had been no recurrence of carpal tunnel as it was a permanent condition and no special
accommodations in the form of light duty had been provided by her supervisor. In a March 29,
2010 report, Dr. McDermott stated that she reported no significant change in her symptoms and
was currently working four days a week. He reported that there was no significant subjective or
objective change in appellant’s physical examination from 2007 and reiterated his
recommendation to abide by the FCE and Monday through Thursday workweek. On April 2,
2010 Dr. McDermott reiterated his diagnosis and recommendations.
By decision dated March 17, 2011, OWCP denied modification of the February 22, 2010
decision finding that the medical evidence submitted was insufficient to establish that appellant
sustained a recurrence of disability due to a change in the nature and extent of the light-duty job
requirements or a change in the nature and extent of the employment-related condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3 This term also means an inability to work that takes place when a light-duty
3

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

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assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.5
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized
corrective carpal tunnel release surgeries. Appellant returned to work following the acceptance
of the employment injury in a limited-duty capacity. The issue on appeal is whether she has
established a recurrence of total disability commencing June 24, 2005 causally related to the
accepted employment injury. Appellant, therefore, has the burden of proof to show a change in
the nature and extent of her injury-related condition or a change in the nature and extent of her
limited-duty job requirements.
Appellant accepted an offer of limited duty effective June 24, 2005 with the following
restrictions: no lifting more than five pounds; repetitive tasks not to extend more than one and a
half hours; and frequent breaks due to hand/arm pain. On August 18, 2009 she indicated that
after returning to work following the original injury she had permanent limitations on lifting and
pushing heavy objects and frequent breaks in order to help relieve carpal tunnel pain and
inflammation. Appellant reported that her job hours had been shortened in order to help her cope
with her chronic symptoms. The evidence of record does not establish that the employing
establishment had taken any formal action to cause any change in the nature and extent of
appellant’s light-duty job requirements.
Dr. Greenfield released appellant to light duty effective June 27, 2005 advising that she
should work no more than four days a week for the next nine weeks. On April 24, 2006 the FCE
established that she was capable of performing the essential tasks of her usual job as a secretary
without formal restrictions. Dr. McDermott recommended that appellant be placed on a four-day
workweek schedule, from Monday to Thursday, with permanent restrictions based on the FCE.
On March 29, 2010 he reported that she was currently working four days a week and stated that
there was no significant subjective or objective change in her physical examination since 2007.
The Board finds that there is no evidence substantiating that appellant was required to perform
4

Id.

5

See Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986). See also
A.M., Docket No. 09-1895 (issued April 23, 2010).

5

duties that exceeded her medical restrictions.6 Although Drs. Greenfield and McDermott
recommended a four-day workweek, they did not indicate a particular change in the nature of
appellant’s physical condition arising from the employment injury, which prevented her from
performing her light-duty position.7
Similarly, Dr. Wayne’s October 10, 2005 report did not provide a well-reasoned medical
narrative report explaining how factors of appellant’s federal employment materially worsened
or aggravated her condition to the point where she could no longer perform the function of her
duties causing her to be totally disabled for work. Thus, appellant did not meet her burden of
proof with this submission.
On appeal, counsel contends that the March 17, 2011 OWCP decision is contrary to fact
and law. The Board finds that the evidence submitted by appellant lacks adequate rationale to
show a change in the nature and extent of her accepted condition or a change in the nature and
extent of her limited-duty job requirements. Therefore, appellant did not meet her burden of
proof to establish disability as a result of a recurrence.
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 to establish that she sustained a
recurrence of total disability commencing June 24, 2005 causally related to the May 1, 2003
employment injury.8

6

See Richard A. Neidert, 57 ECAB 474 (2006).

7

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

The Board notes that the record contains evidence pertaining to a claimant under OWCP File No. xxxxxx874.

6

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AK, Employer
__________________________________________

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

Docket No. 11-2104
Issued: May 3, 2012

Case Submitted on the Record

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

JURISDICTION
On September 19, 2011 appellant filed a timely appeal from a July 19, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied merit review. Because
more than 180 days elapsed from the most recent merit decision of July 13, 2010 to the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 6, 2010 appellant, then a 54-year-old carrier, filed an occupational disease
claim alleging that her repetitive work duties exacerbated her existing bilateral shoulder
1

5 U.S.C. §§ 8101-8193.

condition and carpal tunnel syndrome. She stopped work on October 27, 2008. Appellant stated
that she began using her upper extremities more upon returning to work in June 2008. The
employing establishment controverted the claim and provided statements from managers who
indicated that she was irregular in attendance and not productive in her position.
By letter dated February 8, 2010, OWCP advised appellant of the evidence needed to
establish her claim, including a comprehensive medical report from her treating physician with a
reasoned explanation as to how the specific work factors or incidents contributed to her claimed
injury.
On February 12, 2010 appellant was treated by Dr. William L. Rutledge, a Boardcertified surgeon, for bilateral knee pain and left shoulder pain. Dr. Rutledge diagnosed acute
exacerbation of chronic knee pain bilaterally, aggravation of shoulder pain and bilateral carpal
tunnel syndrome and recommended physical therapy.
In an April 9, 2010 decision, OWCP denied appellant’s claim finding that she failed to
establish fact of injury as the medical evidence failed to contain a medical diagnosis in
connection with the injury or events.
On April 30, 2010 appellant requested a review of the written record. She submitted an
OWCP decision from claim number xxxxxx301. In an October 27, 2008 report, Dr. Rutledge
noted a history of appellant’s work injury on December 9, 1991, claim number xxxxxx190 and
diagnosed bilateral carpal tunnel syndrome, bilateral shoulder tendinosis and rotator cuff injuries.
He advised that appellant returned to work part time on June 21, 2008 and developed bilateral
shoulder pain from performing computer work and boxing mail. Dr. Rutledge opined that
appellant developed an aggravation of her preexisting conditions of bilateral carpal tunnel
syndrome, an aggravation of bilateral shoulder pain and impingement syndrome which was
directly caused by her limited-duty assignment from June to October 2008.
In a decision dated July 13, 2010, an OWCP hearing representative affirmed the April 9,
2010 decision. Appellant submitted sufficient evidence to establish a medical diagnosis but the
medical evidence was insufficient to establish that her claimed shoulder or carpal tunnel
condition was caused by her employment.2
On May 26, 2011 appellant requested reconsideration. She disputed the statements from
the employing establishment contending that she performed her job to the best of her ability.
Appellant asserted that she was reemployed under false pretenses and was unable to perform all
of her assigned duties and lost all her benefits. She submitted a November 16, 2009 OWCP
decision from case file number xxxxxx301 and a notification of personnel action dated
January 2, 2010.

2

The hearing representative also directed that the claim be doubled with claim file numbers xxxxxx190 and
xxxxxx301. Appellant filed a claim for an injury sustained on December 9, 1991 which was accepted for bilateral
carpal tunnel syndrome and a right shoulder injury, file number xxxxxx190. She also filed a claim which was
accepted for right ankle contusion, left knee old bucket tear of the medial meniscus, bilateral chondromalacia
patella, bilateral carpal tunnel syndrome and right shoulder rotator cuff tear, claim number xxxxxx301.

2

In an October 15, 2008 duty status report, Dr. Rutledge diagnosed cervical strain and
chondromalacia of the knees and returned appellant to work full time with restrictions. In a
September 9, 2010 report, he treated appellant for bilateral shoulder pain. Dr. Rutledge noted
positive findings upon physical examination and diagnosed bilateral shoulder pain with
impingement syndrome, rotator cuff tear of the right shoulder and rotator cuff tendinitis of the
left shoulder. In a March 3, 2011 report, he noted that appellant underwent right shoulder
surgery with some improvement. Dr. Rutledge advised that appellant complained of significant
hand and wrist pain and general emotional distress from her multiple joint problems. He
diagnosed chronic right shoulder pain and dysfunction, bilateral carpal tunnel syndrome, left
shoulder pain and bilateral knee pain.
In a July 9, 2011 decision, OWCP denied appellant’s reconsideration request finding that
it was insufficient to warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by the OWCP;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
On July 13, 2010 OWCP denied appellant’s claim for compensation on the grounds that
the medical evidence was insufficient to establish that her claimed conditions were caused by her
employment. On July 19, 2011 it denied her May 26, 2011 reconsideration request, without a
merit review, and she appealed this decision to the Board. The issue presented on appeal is

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

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whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to
reopen the case for review of the merits of the claim.
In her May 26, 2011 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant asserted that the statements from her supervisors disputing
her claim were inappropriate and misleading. She contends that she performed her job to the
best of her ability. Appellant asserted that she was reemployed under false pretenses and was
unable to perform her assigned duties. The underlying issue in this case was whether she
sustained an aggravation of her bilateral shoulder condition and carpal tunnel syndrome causally
related to the October 27, 2008 work injury. That is a medical issue which must be addressed by
relevant medical evidence.6 Appellant’s assertions that do not address the basis for the denial of
the claim are insufficient to require OWCP to reopen the claim for a merit review.7
Appellant submitted an October 15, 2008 duty status report from Dr. Rutledge who
diagnosed cervical strain and chondromalacia of the knees. In a September 9, 2010 report,
Dr. Rutledge treated her for bilateral shoulder pain and noted diagnoses. Similarly, in a March 3,
2011 report, he treated appellant for right shoulder injuries and carpal tunnel syndrome which
developed while working in 1991. Although these reports are new, they are not relevant because
they do not address the particular issue involved, whether appellant’s conditions were causally
related to her claimed 2008 work injury. Dr. Rutledge failed to address whether the diagnosed
conditions were causally related to employment factors beginning in June 2008. Additionally,
these notes are also similar to Dr. Rutledge’s notes dated October 27, 2008, February 12, 2010
previously of record and previously considered by OWCP in its decisions dated April 9 and
July 13, 2010 and found to be insufficient. Therefore, OWCP properly determined that this
evidence was cumulative and did not constitute a basis for reopening the case for a merit review.
Appellant also submitted a copy of an OWCP decision in another claim, xxxxxx301; however,
this evidence is irrelevant to the issue in this case which is whether appellant sustained an
occupational disease, beginning in June 2008, causally related to her employment.
The Board accordingly 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.
On appeal appellant reiterated her assertion that she developed an aggravation of her
bilateral shoulder, knee and carpal syndrome as a result of her work duties. She noted that her
prior claims, number xxxxxx301 and xxxxxx190 were related to her current condition. The
Board notes, however, that it only has jurisdiction over whether OWCP properly denied a merit
review of the claim. As explained, appellant did not submit evidence or argument in support of

6

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

7

See Johnnie B. Causey, 57 ECAB 359 (2006) (evidence which does not address the particular issue involved in
a case does not constitute a basis for reopening the claim).

4

her reconsideration request that warranted reopening of her claim for a merit review under
20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-781
Issued: December 7, 2010

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant, through her representative, filed a timely appeal from the
September 18, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied modification of its wage-earning capacity determination. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether appellant met her burden to establish that the claimed
medical conditions are causally related the incident that occurred in the course of her
employment on May 26, 1999; and (2) whether appellant established that modification of the
Office’s April 21, 2003 wage-earning capacity determination is warranted.
FACTUAL HISTORY
On May 26, 1999 appellant, then a 36-year-old mail handler, sustained an injury in the
performance of duty when she bent over a postal container, picked up a heavy tray of letters,
twisted and felt lower back pain. The Office accepted her claim for lumbosacral sprain.

Appellant later returned to work six hours a day as a modified mail handler. On April 21, 2003
the Office determined that her actual wages in that modified position fairly and reasonably
represented her wage-earning capacity. It paid compensation for partial disability.
Appellant filed a claim alleging a recurrence of total disability beginning
January 28, 2008. She explained that after she returned to work in her modified position her
condition was manageable. Appellant still had chronic pain around the sacroiliac, left and right,
with sciatic pain down the right leg. Her right ankle had no sensation, which was a permanent
condition. Appellant’s pelvic pain and stiffness was moderate but much worse in colder months.
“I have gone to physical therapy a couple of times since my return to work at six hours a day.”
Appellant explained that her modified job required her to walk the building picking up
mail and tear-ups. The utility cart she pushed was heavy and did not roll well, forcing her to use
her upper back and arms. “Original injury was to lumbar area and leaves me with no counter
balance.” Appellant described how her condition had changed:
“My condition has been deteriorating this past year. I now have sharp nerve pain
sporadically along bottom of right foot. Pain in upper back and neck. Radiating
pain down both arms with a burning and stinging sensation. Right arm has lost
strength to grip or hold anything of weight. I believe the modified job is further
exacerbating my condition. I am requesting to expand present injury based on
Dr. Hansraj’s report of Feb. 11, 2008.”
On January 28, 2008 Dr. Kenneth K. Hansraj, an orthopedic spine surgeon, treated
appellant for an emergency evaluation of excruciating pain. Appellant was unable to perform
activities of daily living; lifting her arms put her in severe pain. Dr. Hansraj found she was
temporarily totally disabled. On February 11, 2008 he advised that he was treating appellant for
cervical and lumbar spondylosis. Dr. Hansraj stated that her current cervical pain was related to
her May 26, 1999 employment injury.
A February 13, 2008 magnetic resonance imaging (MRI) scan of the lumbar spine found
multilevel degenerative disc disease with herniation and resultant narrowing of the central canal
or neural foramina; spondylosis; facet joint arthropathy and dextroscoliosis of the lumbar spine.
Dr. Hansraj advised appellant that she had a foraminal disc right side at L5-S1, a foraminal disc
left side at L4-5 and degenerative disc disease at L3-S1.
On July 3, 2008 the Office denied modification of its prior wage-earning capacity
determination. It found that Dr. Hansraj’s reports were not sufficient to establish a material
worsening of the accepted work-related condition.
Appellant, through her attorney, requested reconsideration. Counsel argued that the
Office failed to accept all the medical conditions caused by the May 26, 1999 work incident. He
contented that appellant’s recurrence of total disability on January 28, 2008 was a result of
medical conditions casually related to that incident. Counsel provided evidence from
Dr. Hansraj dated February 9, 2009 and submitted medical reports and diagnostic tests.
On February 9, 2009 Dr. Hansraj stated that appellant had been under his care since 1999
and that the progressive dehabilitation of her neck and back was well documented. He diagnosed
2

cervical spondylosis with neck pain that radiates to the right and left scapula and down the right
arm especially. Dr. Hansraj also diagnosed lumbar spondylosis with back pain that radiates
down the right leg, predominantly and periodically down the left. “I believe these injuries are all
related to her work employment. The documentation is throughout the chart.” Dr. Hansraj noted
that appellant did not have any other injuries that would cause her back or neck problems and
that she was never treated by any other party for neck or back injuries. “The conditions
described above were caused by the injury described, since the patient had no symptoms before
this.”
In a decision dated September 18, 2009, the Office reviewed the merits of appellant’s
claim and denied modification of its July 3, 2008 decision. It found that she did not establish
that a modification of its prior wage-earning capacity determination was warranted. The Office
also found that the medical evidence did not support acceptance of appellant’s various medical
conditions as a result of the May 26, 2009 employment injury.
On appeal, appellant’s representative contends that the reconsideration request
established all conditions outlined in the medical evidence and that appellant’s recurrence of
disability was compensable.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of her duty.1 A
claimant seeking benefits under the Act has the burden of proof to establish the essential elements
of her claim by the weight of the evidence,2 including that she sustained an injury in the
performance of duty and that any specific condition or disability for work for which she claims
compensation is causally related to that employment injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6

1 5 U.S.C. § 8102(a).
2 Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.
3 Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
4 Mary J. Briggs, 37 ECAB 578 (1986).
5 William Nimitz, Jr., 30 ECAB 567, 570 (1979).
6 See Morris Scanlon, 11 ECAB 384, 385 (1960).

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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.7
Medical conclusions unsupported by rationale are of little probative value.8 Medical
conclusions based on inaccurate or incomplete histories are also of little probative value.9
ANALYSIS -- ISSUE 1
Appellant sustained an injury in the performance of duty on May 26, 1999 when she bent
over a postal container and picked up a heavy tray of letters. The Office accepted her claim for
lumbosacral sprain. Appellant argued that the Office must expand its acceptance to include
every medical condition outlined in the medical evidence. She bears the burden of proof to
establish the element of causal relationship for any medical condition not accepted by the Office.
In a February 9, 2009 report, Dr. Hansraj, the attending orthopedic spine surgeon,
diagnosed cervical and lumbar spondylosis and stated that he believed these injuries were related
to appellant’s federal employment. “The documentation is throughout the chart.” There are
many medical reports in the record and many diagnostic tests. Appellant received medical
attention for a number of medical conditions. This fact alone, is no proof that these conditions
are the result of the May 26, 1999 injury, nor is causal relationship apparent from the mere fact
that appellant suffered progressive debilitation over the years.
Dr. Hansraj stated that appellant did not have any other injuries that would cause her back
or neck problems. He did not explain how her problems could be caused by traumatic injury or
whether it was possible she could have developed spondylosis independently, in the absence of
any incident at work. Dr. Hansraj added: “The conditions described above [cervical and lumbar
spondylosis] were caused by the injury described, since the patient had no symptoms before
this.” The Board has held that when a physician concludes that a condition is causally related to an
employment because the employee was asymptomatic before the employment injury, the opinion
is insufficient, without supporting medical rationale, to establish causal relationship.10 Temporal
relationships, such as Dr. Hansraj noted, do not establish causal relationships. Dr. Hansraj must
soundly explain, from an orthopedic point of view, how the May 26, 1999 incident caused
appellant’s current lumbar or cervical spondylosis and he must support his opinion with specific
references to clinical and diagnostic findings.
The Board has reviewed the extensive medical record and finds that appellant has not met
her burden of proof to establish the critical element of causal relationship for the medical
7

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

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

9

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
10

Thomas D. Petrylak, 39 ECAB 276 (1987).

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conditions she currently claims compensation. Dr. Hansraj’s opinion is not well rationalized and is
of diminished probative value.
LEGAL PRECEDENT -- ISSUE 2
As noted, the Act provides compensation for the disability of an employee resulting from
personal injury sustained while in the performance of her duty.11 “Disability” means the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury. It may be partial or total.12
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by the employee’s actual earnings if the employee’s actual earnings
fairly and reasonably represent her wage-earning capacity.”13 Generally, wages actually earned
are the best measure of a wage-earning capacity and in the absence of evidence showing that
they do not fairly and reasonably represent the injured employee’s wage-earning capacity must
be accepted as such measure.14
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous. The burden of proof is on the party
attempting to show modification of the award.15
ANALYSIS -- ISSUE 2
Once the Office issues a formal decision on wage-earning capacity, the rating should be
left in place until the claimant requests resumption of compensation for total wage loss, as with a
recurrence claim, for more than a limited period of disability, in which instance the Office will
need to evaluate the request according to the customary criteria for modifying a formal wageearning capacity determination.16 The legal standard relating to recurrences is therefore
immaterial.
The Office issued a formal decision on appellant’s wage-earning capacity on
April 21, 2003. When appellant filed a claim alleging a recurrence of total disability beginning
January 28, 2008, she has the burden to establish a material change in the nature and extent of
her injury-related condition. The Office accepted a lumbosacral sprain. Appellant’s
representative contends the Office must accept every medical condition outlined in the medical
11

Supra note 1.

12

20 C.F.R. § 10.5(f).

13

5 U.S.C. § 8115(a).

14

Don J. Mazurek, 46 ECAB 447 (1995).

15

Daniel J. Boesen, 38 ECAB 556 (1987).

16

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

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evidence, but to date the Office has accepted only one. As discussed, appellant has the burden to
establish that the other medical conditions for which she claims compensation. It is also her
burden to establish a material change in the nature and extent of the lumbosacral sprain she
sustained on May 26, 1999.
Appellant has submitted no probative medical opinion on this point. She rests her claim
for compensation entirely on her attempt to establish that the Office should expand its acceptance
to include the medical conditions that have caused her to become totally disabled for work.
Because appellant has not established a material change in the nature and extent of her May 26,
1999 lumbosacral sprain, the Board finds that she has not met her burden to establish that
modification of the Office’s April 21, 2003 determination of wage-earning capacity is warranted.
The Board will therefore affirm the Office’s September 18, 2009 decision denying modification
of its prior decision.
As to the argument of appellant’s representative on appeal, appellant’s reconsideration
request fails to establish that the Office must expand the class of accepted conditions to include
all conditions outlined in the medical evidence. Further, the Office properly handled appellant’s
recurrence claim as a request for modification of its April 21, 2003 wage-earning capacity
decision and the Office properly denied that request.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish any of the
medical conditions for which she currently claims compensation. The Board also finds that she
has not met her burden to establish that modification of the Office’s April 21, 2003 wage-earning
capacity determination is warranted.

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Y., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Escondido, CA, Employer
__________________________________________

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Appearances:
James Yates, for the appellant
Office of Solicitor, for the Director

Docket No. 07-981
Issued: September 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2007 appellant, through her representative, filed a timely appeal of the
Office of Workers’ Compensation Programs’ nonmerit decisions dated November 8, 2006 and
February 9, 2007, which denied her requests for reconsideration on the grounds that the requests
were not timely filed and failed to establish clear evidence of error. Because more than one year
has elapsed from the last merit decision dated August 7, 1995 to the filing of this appeal on
February 27, 2007, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Office properly determined that appellant’s August 22,
2006 request for review of a loss of wage-earning capacity determination constituted an untimely
request for reconsideration; and (2) whether the Office properly determined that appellant’s
December 22, 2006 request for reconsideration constituted an untimely request for
reconsideration.

FACTUAL HISTORY
On December 17, 1992 appellant, then a 49-year-old service representative, filed an
occupational disease claim alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment. The Office accepted appellant’s claim for bilateral carpal
tunnel syndrome and left ganglion cyst. It authorized left carpal tunnel syndrome performed on
June 25, 1993. The Office entered appellant on the periodic rolls on July 16, 1993.
Dr. Richard M. Braun, a Board-certified orthopedic surgeon, submitted reports on
appellant’s behalf on March 13 and July 22, 1994 and diagnosed bilateral carpal tunnel
syndrome. He found that she was not totally disabled. Dr. Braun completed a work restriction
evaluation as requested by the Office on August 29, 1994 and stated that appellant could perform
typing or other repetitive fine hand motions for two hours in the morning and two hours in the
afternoon with a two-hour break. He stated that she could work eight hours a day and could not
perform repetitive lifting over 10 pounds.
The Office referred appellant for vocational rehabilitation services on January 9, 1995.
Appellant submitted a report dated September 2, 1994 from Dr. Roy A. Kaplan, a Board-certified
rheumatologist, diagnosing fibromyalgia which he attributed to a nonemployment-related motor
vehicle accident. Dr. Kaplan found that appellant was totally disabled due to this condition.
On April 4, 2005 the Office requested that the vocational rehabilitation counselor submit
selected positions within appellant’s physical limitations based on Dr. Braun’s August 19, 2004
form report. The vocational rehabilitation counselor selected the positions of general office clerk
and order clerk as within appellant’s abilities and reasonably available within her commuting
area based on a survey of 14 businesses for each position. The counselor noted that the position
of general office clerk included writing, typing and entering information into a computer, using a
keyboard, preparing correspondence, bills, statements receipts, check or other documents,
copying information as well as addressing and stuffing envelopes. The position also entailed
answering the telephone, conveying messages, running errands and stamping or numbers forms
by hand as well as photocopying. The vocational rehabilitation counselor noted that based on
her survey of 14 businesses computer work constituted less than 50 percent of the workday. The
salary was $296.40 per week. The duties of a general clerk were classified as light work, with
lifting 20 pounds occasionally and 10 pounds frequently along with frequent reaching, handling
and fingering.
In a letter dated July 5, 1995, the Office proposed to reduce appellant’s compensation
based on her capacity to earn wages as a general clerk. Appellant disagreed with this proposed
reduction on July 31, 1995. By decision dated August 7, 1995, the Office reduced appellant’s
compensation based on her capacity to earn wages as a general clerk.
Appellant requested an oral hearing on August 24, 1995. She withdrew this request on
November 12, 1997.

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On August 22, 2006 appellant requested that the Office modify the formal wage-earning
capacity determination on the grounds that the “original rating was in error.” (Emphasis in the
original.) She stated that she was totally disabled at the time of the August 7, 1995 decision and
that the decision was not based on reasonably current medical evidence.
By decision dated November 8, 2006, the Office declined to reopen appellant’s claim for
review of the merits finding that her request for review was not timely filed and failed to
demonstrate clear evidence of error.
In a letter dated November 19, 2006, entitled “Modification of [loss of wage-earning
capacity] decision” appellant alleged that the Office failed to consider her preexisting conditions
in reaching the constructed loss of wage-earning capacity determination. She submitted medical
reports in support of her allegation. On December 22, 2006 appellant stated that she was
requesting “reconsideration and subsequent merit review” on the grounds that the August 7, 1995
wage-earning capacity decision was in error.
By decision dated February 9, 2007, the Office again declined to reopen appellant’s claim
for consideration of the merits. The Office stated that appellant’s request for reconsideration and
the evidence submitted did not establish clear evidence of error in the August 7, 1995 decision.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition, or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.1
ANALYSIS
In appellant’s August 22, 2006 letter to the Office, she indicated that she was requesting
review of the loss of wage-earning capacity determination. She stated that the specific reason for
her request was that the “original rating was in error.” (Emphasis in the original.) Appellant
alleged that the August 7, 1995 wage-earning capacity determination based on the constructed
position of general clerk was erroneous as it was not based on current medical evidence, as
Dr. Braun’s August 29, 1994 report was nearly one-year old at the time of the decision. She also
alleged that the Office failed to consider her disabling preexisting conditions.
As noted, the Office considered appellant’s August 22, 2006 correspondence an untimely
request for reconsideration and found that she failed to present clear evidence that the Office’s
final merit decision was erroneous. It is evident from appellant’s letter that she was seeking
modification of the August 7, 1995 loss of wage-earning capacity determination. The request for
modification in this case is not a request for review of the August 7, 1995 decision under
5 U.S.C. § 8128 and is not subject to those requirements.2 Appellant did not previously request
1

See Sue A. Sedgwick, 45 ECAB 211 (1993).

2

But see L.C., 58 ECAB ___ (Docket No. 06-1928, issued May 31, 2007).

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and receive review from the Office or the Board on the issue of modification of the August 7,
1995 decision. She has not previously raised arguments on reconsideration. Appellant’s
August 22, 2006 correspondence is a request for additional compensation.3
CONCLUSION
The Board finds that the Office improperly characterized appellant’s August 22, 2006
letter as a request for reconsideration subject to the one-year time limitation set forth in
20 C.F.R. § 10.607(a). Appellant has requested modification of the August 7, 1995 loss of wageearning capacity determination and is entitled to a merit decision on that issue. On remand, the
Office should develop the record as necessary and issue a de novo decision with regard to
appellant’s loss of wage-earning capacity.4
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2007 and November 8, 2006
decisions of the Office of Workers’ Compensation Programs are set aside and remanded for
further development consistent with this decision of the Board.
Issued: September 19, 2007
Washington, DC

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

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

3

Gary L. Moreland, 54 ECAB 638, 640 (2003).

4

Due to the disposition of this issue, it is not necessary for the Board to address the December 22, 2006 request.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Buffalo, NY, Employer
__________________________________________

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

Docket No. 13-1973
Issued: March 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2013 appellant timely appealed the July 23, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which affirmed a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has greater than 12 percent impairment of the right arm.
FACTUAL HISTORY
Appellant, a 50-year-old criminal investigator, has an accepted claim for right rotator cuff
tear which occurred on June 1, 2010. He injured his right shoulder using a bolt cutter on a
padlock. On July 26, 2010 appellant underwent right shoulder surgery by Dr. Paul J. Mason, a
1

5 U.S.C. §§ 8101-8193 (2006).

Board-certified orthopedic surgeon. His postoperative diagnosis was right large rotator cuff tear.
Appellant resumed his regular employment duties within four months of surgery.2 On May 5,
2011 Dr. Mason advised him to return on an as needed basis. Appellant subsequently filed a
claim for a schedule award (Form CA-7).
Dr. Mason provided a September 18, 2012 impairment rating under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (2008). He found 25 percent right upper extremity impairment due to a full-thickness
rotator cuff tear (13 percent) and loss of shoulder motion (12 percent). Dr. Mason generally
referenced Table 15-5, Shoulder Regional Grid, A.M.A., Guides 401, 403 (6th ed. 2008) as
support for the diagnosis-based rotator cuff impairment. With respect to the range of motion
(ROM) impairment, he cited Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th
ed. 2008). Dr. Mason’s physical examination revealed forward elevation/flexion to 160 degrees
(three percent), extension to 30 degrees (one percent), abduction to 150 degrees (three percent),
external rotation to 45 degrees (two percent), and internal rotation to L2 (two percent). He also
found impairment for loss of adduction (one percent). When added together, the shoulder ROM
impairments totaled 12 percent of the right upper extremity.
In a December 13, 2012 report, Dr. Henry H. Magliato, the district medical adviser
disagreed with Dr. Mason’s rating under Table 15-5, A.M.A., Guides 403 (6th ed. 2008).3 He
explained that the highest rating available for a rotator cuff injury with full-thickness tear was
seven percent impairment of the upper extremity. Thus, Dr. Mason’s rating of 13 percent
impairment for a class 1 rotator cuff injury was not supported by Table 15-5, A.M.A., Guides
403 (6th ed. 2008). Further, the A.M.A., Guides did not permit combining a diagnosis-based
rotator cuff impairment rating with ROM impairment, which was a stand-alone impairment
rating. Dr. Magliato concurred with Dr. Mason’s 12 percent rating for loss of shoulder ROM,
and found that appellant reached maximum medical improvement as of September 18, 2012.
On April 1, 2013 OWCP granted appellant a schedule award for 12 percent impairment
of the right upper extremity. The award covered a period of 37.44 weeks beginning
September 18, 2012.
Appellant requested an oral hearing which was held on June 17, 2013.
In a May 14, 2013 report, Dr. Mason noted that he reviewed Dr. Magliato’s report. He
disagreed with the ROM methodology because it did not account for loss of strength or
permanent disfigurement due to surgical scarring. As such, ROM did not fairly represent the full
extent of appellant’s right upper extremity impairment. Dr. Mason reexamined appellant on
June 25, 2013 and reiterated his concerns about the ROM methodology.

2

During a December 2, 2010 follow-up examination, appellant advised Dr. Mason that he was performing full
duty.
3

The DMA, Dr. Henry H. Magliato, is a Board-certified orthopedic surgeon.

2

By decision dated July 23, 2013, the Branch of Hearings and Review affirmed the
April 1, 2013 schedule award. The hearing representative noted that, under the sixth edition, the
diagnosed based for rating impairment could not be combined with ROM.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
ANALYSIS
On appeal appellant contends that OWCP should have based his schedule award on
Dr. Mason’s September 18, 2012 impairment rating of 25 percent to the right arm due to the
rotator cuff injury with full-thickness tear (13 percent) and loss of shoulder ROM (12 percent).
The Board finds, however, that Dr. Mason’s impairment rating was only partially correct.
Dr. Mason improperly combined a diagnosis-based impairment method with impairment for loss
of shoulder range of motion. He identified Table 15-5, Shoulder Regional Grid, A.M.A., Guides
403 (6th ed. 2008) as the basis for 13 percent upper extremity impairment rating for full-thickness
rotator cuff tear. Table 15-5 provides in relevant part: “If motion loss is present, this impairment
may alternatively be assessed using Section 15.7, Range of Motion impairment. A ROM
impairment stands alone and is not combined with diagnosis impairment.”7 (Emphasis added.)
Dr. Magliato properly noted the diagnosis-based rotator cuff impairment and the shoulder ROM
impairment are mutually exclusive. Notwithstanding Dr. Mason’s belief that the ROM
methodology does not fully reflect the extent of appellant’s right upper extremity impairment, his
combination of the two impairment methods is contrary to the text of the A.M.A., Guides (6th ed.
2008). Dr. Mason’s 13 percent impairment rating for rotator cuff tear is also inconsistent with
Table 15-5, A.M.A., Guides 403 (6th ed. 2008). The maximum rating for a full-thickness rotator
cuff tear is seven percent. Dr. Mason provided no explanation for his rating of 13 percent upper
extremity impairment under Table 15-5. As the ROM impairment value of 12 percent is greater
than the diagnosis-based rating of 7 percent, Dr. Magliato agreed with Dr. Mason’s finding of 12
percent impairment under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th ed.
4

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
5

20 C.F.R. § 10.404 (2012).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
7

A.M.A., Guides 405 (6th ed. 2008).

3

2008). There is no credible medical evidence demonstrating a greater impairment than the 12
percent previously awarded.
CONCLUSION
Appellant has not established that he has greater than 12 percent impairment of the right
arm.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-213
Issued: May 7, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant, through her attorney, filed a timely appeal from a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on December 20, 2012.
FACTUAL HISTORY
On February 21, 2013 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injury on December 20, 2012 when a driver
rear-ended her vehicle while she was stopped at a mailbox. She described her injury as lower
1

5 U.S.C. § 8101 et seq.

back and neck pain. Appellant’s regular work hours were from 7:30 a.m. to 3:30 p.m. The
employing establishment controverted her claim, stating that there was a motor vehicle incident
on December 20, 2012, after which she complained of back pain only and visited a hospital.
Appellant worked for the following two days after this incident. It also controverted
continuation of pay on the basis that she had not submitted her claim within 30 days of the date
of injury.
In a letter dated December 27, 2012, Dr. Rony Najjar, a Board-certified surgeon, stated
that appellant had been admitted to a hospital on December 23, 2012 as the result of a motor
vehicle collision and that the date of her discharge was unknown at that time.
In a note dated January 7, 2013, Dr. Najjar stated that appellant was unable to work until
January 24, 2013. In a note dated January 24, 2013, he stated that she could return to light-duty
work on February 4, 2013 and to full duty on February 25, 2013.
On March 6, 2013 the employing establishment explained its reasons for challenging
appellant’s claim. It noted that she had informed her supervisor on the third day after her
accident that she was going to the emergency room and would not be available to work the next
day, but did not relate this event to being rear-ended at a mailbox on December 20, 2012. On
December 25, 2012 appellant’s husband contacted her supervisor to state that appellant had
surgery for a ruptured bladder, but he did not at that time relate the condition to the incident on
December 20, 2012. On December 31, 2012 appellant requested a traumatic injury claim form
and a copy of the incident report, which was sent to her on January 2, 2013. On January 8, 2013
her supervisor contacted her to inquire about the status of her claim and appellant told her that
she did not have an on-the-job injury and would not complete the form. Appellant stated that she
did not want forms for workers’ compensation because her condition was not work related and
requested Family and Medical Leave Act (FMLA) documents. On February 21, 2013 she
delivered the traumatic injury claim form, stating to her supervisor that she had gotten bad
information and wanted to file a workers’ compensation claim. The employing establishment
claimed that the medical information submitted by appellant did not establish that her ruptured
bladder was related to the vehicle incident of December 20, 2012.
The employing establishment’s letter was accompanied by a statement from appellant’s
supervisor, dated February 21, 2013, corroborating its account of events. It noted, additionally,
that the employing establishment did not provide light-duty work to rural carriers for
nonoccupational injuries and that it had not allowed appellant to return to work before she was
released for full duty with no restrictions by her physician on February 25, 2013.
In an FMLA certification of health care provider for employee’s serious health condition
dated January 8, 2013, Dr. Najjar stated that appellant presented with abdominal pain, which he
found to be the result of an acute bladder rupture. He noted that her condition commenced on
December 23, 2012 and that its duration was eight weeks.
On March 8, 2013 OWCP requested that appellant submit additional factual and medical
evidence in support of her claim. It afforded her 30 days to submit this evidence. In response,
appellant submitted an attorney authorization form dated March 23, 2013.

2

By decision dated April 12, 2013, OWCP denied appellant’s claim. It found that she had
not submitted sufficient evidence to establish that a medical condition had been diagnosed in
connection with the claimed incident.
On April 22, 2013 appellant, through her attorney, requested a telephonic hearing before
an OWCP hearing representative.
Appellant submitted hospital notes and diagnostic records dated from December 23, 2012
through April 26, 2013, prior to the hearing.
In a traffic crash report dated December 20, 2012, the responding officer stated that at
2:30 p.m. on this date appellant’s vehicle, which had been stopped by a mailbox with a white
strobe light activated on its roof, was struck in the rear by another vehicle. The striking vehicle
had left 115 feet of skid marks prior to impact.
In a report dated December 23, 2012, Dr. Smita Shah, a Board-certified internist, stated
that appellant had undergone a computerized axial tomography (CAT) scan, which revealed free
fluid in the abdomen. She noted appellant’s past medical history, which was significant for
hyperlipidemia, peripheral arterial disease and cervical cancer. On examination, Dr. Shah found
that appellant’s abdomen was soft, but distended, with a severe, diffuse, ill-defined tenderness
present and voluntary guarding.
On December 23, 2012 Dr. Richard R. Randall, a Board-certified surgeon, noted that
appellant had abdominal pain of unclear etiology. He noted her prior medical history, which was
significant for a tubal ligation, hysterectomy, cervical cancer, cardiovascular disease, heavy
tobacco use and chronic pain. Dr. Randall stated that appellant had been admitted in May 2012
with acute abdominal pain, which resolved; and that she had undergone a colonoscopy in the past
year. On examination, he noted that her abdomen was nontender and nondistended.
In a report dated December 23, 2012, Dr. Rinkesh Patel, a resident physician, stated that
appellant had been involved in a motor vehicle incident three days prior and that she had neck
and lower back pain. He noted that she presented with abdominal pain and she had a similar
episode in May 2012, and she had transferred to another medical facility to rule out ischemic
bowel disease. On examination, Dr. Patel noted a soft abdomen with diffuse abdominal
tenderness, no guarding and no rebound tenderness.
On December 24, 2012 Dr. Joseph Pettus, a Board-certified urologist, recommended an
immediate exploratory laparotomy bladder rupture repair and any other indicated procedures
from Dr. Najjar or himself. On review of her CAT scan, he stated that appellant appeared to
have an intraperitoneal bladder rupture. Dr. Pettus noted that she had been involved in a motor
vehicle accident four days prior.
In a report dated December 24, 2012, Dr. Najjar reviewed appellant’s history of illness.
He stated that she had a motor vehicle collision and corroborated her prior medical history.
Dr. Najjar explained that the CAT scan revealed leakage throughout the abdominal cavity and
that testing revealed worsening leukocytosis and increased creatinine consistent with
reabsorption of urine from the peritoneal cavity and worsening renal insufficiency. He concurred
with Dr. Pettus’ recommendation of immediate exploratory surgery.
3

In an operative report dated December 24, 2012, Dr. Pettus stated that appellant had been
involved in a motor vehicle incident and described the procedures to repair a bladder tear found
under exploratory surgery. He stated that she had a small opening in the dome of the posterior
bladder, which was repaired.
On January 1, 2013 Dr. Najjar stated that appellant had been involved in a motor vehicle
incident on December 20, 2012. He stated that she had gone to an emergency room on that date,
but that they did not make any acute findings. On December 23, 2012 appellant presented to
another hospital after experiencing acute abdominal pain, where she was diagnosed with a
bladder rupture. Dr. Najjar assisted in surgery due to the recent motor vehicle collision in case
there was other abdominal trauma. Appellant underwent bladder repair, lysis of adhesions and a
small bowel repair. She was discharged from the hospital with a catheter on January 1, 2013 in
stable condition.
A hearing was held before an OWCP hearing representative on July 26, 2013. Counsel
noted that he had requested a statement on causal relationship from Dr. Pettus and Dr. Najjar, but
that it had not yet been received. Appellant stated that she did not know at the time of her
bladder rupture that it was work related, but that she had realized it later when reading over her
physicians’ reports. She noted that she had also hurt her back and neck as a result of this
incident. Appellant stated that she had an appointment with Dr. Pettus in August for a follow-up
examination.
She noted that she had seen a physician roughly a month prior to
December 20, 2012 for blood in her urine, which resolved on medication, but that she had
attributed this condition to her regular gynecological pattern. OWCP’s hearing representative
requested that appellant submit records from the treating physician for this condition. Appellant
clarified that she had arrived at the hospital on December 23, 2012 and had surgery the next day.
The hearing representative explained that appellant should submit a report on causal relationship
from her physicians and that the record would be held open for 30 days to receive such evidence.
Appellant submitted
September 26, 2012.

an

unsigned

gynecological

medical

report

dated

On August 1, 2013 Dr. Najjar stated that he felt that the motor vehicle crash on
December 20, 2012 caused her bladder perforation, as “there were no other factors between that
time to the presentation of abdominal pain.” He explained further that the collision may have
caused a small tear to the bladder that progressed into a full injury with leakage of urine into the
abdomen. Dr. Najjar noted that there was a detailed review of appellant’s medical history along
with an examination taken on December 24, 2012, and summarized the testing, treatment and
surgery she underwent from her arrival through discharge. He stated that the mechanism of her
injury was a rear-ended motor vehicle collision.
By decision dated September 9, 2013, OWCP’s hearing representative affirmed its denial
of compensation. He stated that appellant had established the medical component of fact of
injury, but that her claim remained denied because she had not submitted a well-rationalized
opinion from a physician on the issue of causal relationship. The hearing representative found
that Dr. Najjar’s letter dated August 1, 2013 did not meet appellant’s burden of proof, because he
proffered only a speculative opinion that the bladder rupture was injury related as it manifested
several days after the accident; because he did not discuss the collision in detail; and because he

4

had not differentiated between her condition prior to and following December 20, 2012 with
regard to her prior urinary issues.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8

2

Id. at §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

5

ANALYSIS
Appellant alleged that on December 20, 2012 she was involved in a motor vehicle
collision, which resulted in lower back pain, neck pain and a bladder rupture three days later that
required hospitalization. OWCP accepted that the December 20, 2012 incident occurred as
alleged. It initially denied appellant’s claim on April 12, 2013 and affirmed this denial on
September 9, 2013, finding that there was insufficient medical evidence to establish that she
sustained an injury causally related to the employment incident.
OWCP denied the claim on the grounds that appellant did not submit evidence containing
a rationalized medical opinion on causal relationship. The medical evidence bearing on the issue
of causal relationship consists primarily of reports from Dr. Najjar and Dr. Pettus. In a report
dated January 1, 2013, Dr. Najjar stated that appellant had been involved in a motor vehicle
incident on December 20, 2012. He stated that she had gone to an emergency room on that date,
but that they did not make any acute findings. On December 23, 2012 appellant presented to
another hospital after experiencing acute abdominal pain, where she was diagnosed with a
bladder rupture. Dr. Najjar assisted in surgery due to the recent motor vehicle collision in case
there was other abdominal trauma. In a report dated December 24, 2012, Dr. Pettus, a Boardcertified urologist, recommended an immediate exploratory laparotomy bladder rupture repair
and any other indicated procedures from Dr. Najjar or himself. On review of her CAT scan, he
stated that appellant appeared to have an intraperitoneal bladder rupture. Dr. Pettus noted that
she had been involved in a motor vehicle accident four days prior. These reports, along with the
hospital notes dating from December 23, 2012 through April 26, 2013 and the reports of
Drs. Patel, Randall and Shah, refer to the incident of December 20, 2012 only generally and
without a clear affirmative statement on causal relationship and they are therefore not sufficient
to meet appellant’s burden of proof.9
The Board finds that appellant has established a firm diagnosis of bladder rupture. On
August 1, 2013 Dr. Najjar stated that her bladder rupture was caused by the motor vehicle
collision, explaining that “there were no other factors between that time to the presentation of
abdominal pain.” While this statement is speculative, he further explained his position by noting
how appellant’s injury could be physiologically caused by a motor vehicle collision, stating that
it may have caused a small tear to the bladder that progressed into a full injury with leakage of
urine into the abdomen. These two statements together, along with Dr. Najjar’s prior detailed
review of her medical history along with an examination taken on December 24, 2012, and
summarization of the testing, treatment and surgery appellant underwent from her arrival through
discharge, remain insufficiently rationalized to establish causal relationship. However, although
Dr. Najjar’s opinion may not be fully rationalized, proceedings under FECA are not adversarial
in nature and OWCP is not a disinterested arbiter. Appellant has the burden to establish
entitlement to compensation; however, OWCP shares responsibility in the development of the
evidence to see that justice is done.10
9

See J.F., Docket No. 09-1061 (issued November 17, 2009) (finding that medical evidence that does not opine as
to the causal relationship between an appellant’s injury and specified work-related factors is of diminished probative
value on the issue of causal relationship).
10

See Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

6

This case is similar to several other cases in which the Board has found that, while a
physician’s opinion on causal relationship was not fully rationalized, there was nevertheless
sufficient evidence to require further development of the case record on this issue. In T.C.,
appellant alleged pregnancy complications and other injuries resulting from a motor vehicle
incident.11 She submitted several reports from her physicians, noting that she had been involved
in a motor vehicle incident while pregnant, but lacking a clear and fully rationalized opinion on
causal relationship. A physician stated that appellant was involved in a motor vehicle accident
when she was seven months’ pregnant and was hospitalized with contractions. In several notes,
the physician stated that she was on bed rest due to a motor vehicle incident. OWCP denied
appellant’s claim, finding that she had not submitted sufficient medical evidence to establish that
her diagnosed conditions were causally related to the traumatic incident. The Board set aside
this decision and remanded the case for further development, stating that the medical evidence
clearly established that she was pregnant at the time of the incident, and that her physician had
made an affirmative statement that she had suffered complications as a result. The Board found
that, while the medical opinions were not fully rationalized, the medical evidence was sufficient
to require further development of the case record. In L.M., appellant alleged aggravation of a
preexisting knee condition after stepping off of a curb.12 A physician stated that she had stepped
on a curb and as a result experienced a sharp pain in her knee, which he advised was a sprain of
the knee from stepping on the curb and noted that the sprained knee already had some
chondromalacia within it. He indicated that this led to an acute exacerbation of a preexisting
condition, notably the chondromalacia of the patella and persistent pain. OWCP denied
appellant’s claim, finding that she had not submitted sufficient medical evidence to establish a
causal relationship. The Board set aside this decision and remanded the case for further
development, stating that, while this opinion was not sufficient to meet her burden of proof with
regard to her claim for an aggravation of a preexisting knee condition, it raised a substantial
inference between her claimed condition and the employment incident, and was sufficient to
require OWCP to further develop the medical evidence. The Board noted that there was no
opposing medical evidence of record.
In this case, the medical evidence clearly establishes that appellant was diagnosed with a
bladder rupture three days after the motor vehicle incident of December 20, 2012, and that she
underwent surgery to repair a bladder tear. As in T.C., Dr. Najjar’s opinion on causal
relationship was not fully rationalized, but was supported by a statement of causation and
findings on examination; unlike in T.C., Dr. Najjar’s opinion additionally contained an
explanation of how the traumatic incident might have caused appellant’s injury. OWCP has a
responsibility to further develop the case record: it contains an affirmative statement of
causation, gives a physiological explanation as to how the collision might have caused
appellant’s injury, contains an accurate history of her condition and treatment and is consistent
with all other medical reports of record. Therefore, while the medical reports do not provide a
fully rationalized medical opinion explaining how the December 20, 2012 motor vehicle
collision caused her bladder rupture, they are consistent in indicating that appellant sustained an
employment-related injury and raise a substantial inference between appellant’s claimed
11

Docket No. 13-511 (issued August 2, 2013).

12

Docket No. 13-1402 (issued February 7, 2014).

7

condition and the employment incident. The Board concludes that this evidence is sufficient to
require further development of the case record.13
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to an appropriate specialist to determine whether she suffered an injury due to the
December 20, 2012 employment incident. After such further development of the case record as
it deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant’s
bladder rupture was causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to further action consistent
with this decision.
Issued: May 7, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, supra note 5; see also R.C., Docket No.
13-408 (issued January 10, 2014).

8