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

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

Docket No. 08-357
Issued: June 5, 2008

Case Submitted on the Record

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

JURISDICTION
On November 14, 2007 appellant, through her attorney, filed a timely appeal from a
December 19, 2006 merit decision of the Office of Workers’ Compensation Programs and a
June 19, 2007 hearing representative’s decision granting her a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decisions.
ISSUE
The issue is whether appellant has more than a 13 percent permanent impairment of the
right upper extremity.
FACTUAL HISTORY
On June 3, 2004 appellant, then a 46-year-old city letter carrier, filed an occupational
disease claim alleging that she sustained right shoulder impingement due to factors of her federal
employment. The Office accepted the claim for right shoulder impingement and a right rotator
cuff tear.

On September 8, 2004 Dr. George Stollsteimer, a Board-certified orthopedic surgeon,
performed a right shoulder arthroscopy with a right rotator cuff repair and subacromial
decompression. The Office paid appellant compensation for total disability beginning
September 10, 2004. Appellant returned to limited-duty employment on November 9, 2004 and
to her regular employment on May 7, 2005.
On September 6, 2005 Dr. Stollsteimer related, “[Appellant] is being seen status post
right rotator cuff repair. This was done approximately one year ago. She is doing extremely
well. [Appellant] has no complaints whatsoever.” Dr. Stollsteimer found full range of motion of
the shoulder and “5/5 strength in all planes with no pain.” He noted that appellant had no
difficulties performing her employment duties.
On May 25, 2006 Dr. David Weiss, an osteopath Board-certified in family practice,
performed an impairment evaluation. He discussed appellant’s complaints of intermittent pain
and stiffness in her right shoulder and difficulty reaching overhead and lifting. On examination,
Dr. Weiss related:
“There is no focal acromioclavicular point tenderness. There is no anterior cuff
tenderness; however, there is exquisite tenderness noted over the tip of the
acromion. Range of motion reveals forward elevation of 180/180 degrees,
abduction of 170/180 degrees, crossover adduction of 75/75 degrees [and]
external rotation of 80/90 degrees. Posterior reach (internal rotation) is to T6.
Internal rotation is to 75 degrees. Drop test is negative. O’Brien’s test is
negative. Hawkin’s impingement sign is mildly positive. Circumduction
produces no clicks or creptiance.
“Manual muscle strength testing of the upper extremities reveals the supraspinatus
is graded at 4+/5. The biceps, triceps and deltoids are graded at 5/5.”
Dr. Weiss measured upper arm circumference as 26.5 centimeters on the right and 26
centimeters on the left and lower arm circumference as 23 centimeters bilaterally. Citing the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides), (5th ed. 2001), he found that appellant had a 10 percent impairment of the right shoulder
due to a resection arthroplasty1 and a 4 percent impairment due to a motor strength deficit of the
right supraspinatus,2 which he combined to find a 14 percent upper extremity impairment.
Dr. Weiss further found that she had an additional 3 percent impairment due to pain,3 for a total
right upper extremity impairment of 17 percent. Dr. Weiss concluded that appellant reached
maximum medical improvement on May 25, 2006.
On September 7, 2006 an Office medical adviser reviewed Dr. Weiss’ May 25, 2006
report. He noted that Dr. Weiss found normal range of motion, 4/5 weakness of the
supraspinatus and a small reduction in circumference on the left “consistent with a right-handed
1

A.M.A., Guides at 506, Table 16-27.

2

Id. at 484, 492, Tables 16-11, 16-15.

3

Id. at 574, Table 18-1.

2

individual.” The Office medical adviser asserted, “[T]his claimant underwent subacromial
decompression which would qualify for distal clavicle resection arthroplasty and a 10 [percent]
impairment of the right upper extremity.”4 He disagreed with Dr. Weiss’ finding that appellant
had a motor deficit from a peripheral nerve disorder as she did not have peripheral nerve
involvement or a neurological deficit. The Office medical adviser provided her with an
additional 3 percent impairment due to pain for a total right upper extremity impairment of
He opined that appellant reached maximum medical improvement on
13 percent.5
May 25, 2006.
By decision dated December 19, 2006, the Office granted appellant a schedule award for
a 13 percent permanent impairment of the right upper extremity. The period of the award ran for
283.92 days from May 25, 2006 to March 24, 2007.
On January 4, 2007 appellant, through her attorney, requested an oral hearing. At the
hearing, held on April 2, 2007, her attorney contended that Dr. Weiss properly applied the
A.M.A., Guides. Counsel further asserted that a conflict in opinion existed between Dr. Weiss
and the Office medical adviser. In a statement dated April 17, 2007, appellant described her
continuing shoulder problems and difficulty with fatigue.
By decision dated June 19, 2007, the hearing representative affirmed the December 19,
2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing federal regulations,7 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.8 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.9
ANALYSIS
The Office accepted that appellant sustained right shoulder impingement and a right
rotator cuff tear due to factors of her federal employment. On September 8, 2004
4

Id. at 506, Table 16-27.

5

Supra note 3.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

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Dr. Stollsteimer performed a right rotator cuff repair and subacromial decompression. Appellant
stopped work on the date of surgery. She returned to limited-duty employment on November 9,
2004 and to her usual employment on May 7, 2005. In a September 6, 2005 progress report,
Dr. Stollsteimer found that appellant had full range of motion and strength and “no complaints
whatsoever.”
On May 25, 2006 Dr. Weiss noted that appellant experienced intermittent right shoulder
pain and stiffness. He found tenderness of the tip of the acromion and listed range of motion
findings of forward elevation of 180 degrees, abduction of 170 degrees, adduction of 75 degrees,
external rotation of 80 degrees and internal rotation of 75 degrees. Dr. Weiss found that
appellant had 4/5 muscle strength of the supraspinatus and 5/5 muscle strength of the biceps,
triceps and deltoids. He determined that appellant had a 10 percent impairment due to a
resection arthroplasty10 and a 4 percent impairment due to a motor strength deficit of the
supraspinatus.11 Dr. Weiss combined the 10 percent impairment due to the resection arthroplasty
and the 4 percent impairment due to a motor strength deficit to find a 14 percent impairment of
the right upper extremity. He added 3 percent for pain under Chapter 18 and concluded that
appellant had a 17 percent impairment of the right upper extremity. Dr. Weiss, however, did not
properly calculate the impairment due to motor strength deficit using Table 16-15. A proper
application of the A.M.A., Guides requires that specific nerves be identified under Table 16-15
in order to determine the maximum impairment for sensory or motor deficit in the identified
nerve.12 The impairment is then graded according to Table 16-10 for sensory deficits and 16-11
for motor deficits.13 These tables provide a grade from one to five according to the severity of
the impairment. Dr. Weiss identified the supraspinatus as causing a motor strength deficit but
offered no explanation for his rating under the A.M.A., Guides. He did not identify an
impairment of a peripheral nerve and there is no evidence that appellant has a peripheral nerve
impairment. Consequently, Dr. Weiss’ report does not conform to the A.M.A., Guides.
An Office medical adviser reviewed Dr. Weiss’ report and properly found that his range
of motion measurements did not show any impairment under the A.M.A., Guides.14 He
determined that appellant had a 10 percent impairment due to her subacromial decompression
which “would qualify for distal clavicle resection arthroplasty.”15 The Office medical adviser
asserted that appellant did not have a motor deficit impairment from a peripheral nerve
impairment. He opined that she was entitled to an additional award for a 3 percent impairment
due to pain under Chapter 18, which he added to the 10 percent for the subacromial
decompression to find a total right upper extremity impairment of 13 percent. The Board notes,
however, that examiners should not use Chapter 18 to rate pain-related impairments for any
10

A.M.A., Guides at 506, Table 16-27.

11

Id. at 484, 492, Tables 16-11, 16-15.

12

Id. at 492, Table 16-15.

13

Id. at 482, 484, Tables 16-10, 16-11.

14

Id. at 476, 477, 479, Tables 16-40, 16-43, 16-46.

15

Supra note 10. Table 16-27 identifies a 10 percent impairment for a distal clavicle resection arthroplasty rather
than a subacromial decompression.

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condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides.16 Neither Dr. Weiss nor the Office medical
adviser explained why appellant’s condition could not be adequately rated under other chapters.
Consequently, the Board thus finds that the evidence supports that she has no more than a
13 percent right upper extremity impairment. There is no evidence of record conforming to the
A.M.A., Guides showing a greater degree of impairment.
On appeal, appellant’s attorney contends that the record contains a conflict between
Dr. Weiss and the Office medical adviser. As discussed, however, Dr. Weiss’ impairment rating
did not conform to the A.M.A., Guides and is of diminished probative value.17
CONCLUSION
The Board finds that appellant has no more than a 13 percent permanent impairment of
the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 19, 2007 and December 19, 2006 are affirmed.
Issued: June 5, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

See supra note 9. A.M.A., Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).

17

See generally Derrick C. Miller, 54 ECAB 266 (2002).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0520
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a December 3, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0520.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees ’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the December 3, 2020 decision was June 1, 2021. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
December 3, 2020 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -052 0 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0520, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0520 is dismissed.
Issued: March 22, 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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


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

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

Docket No. 07-1258
Issued: October 3, 2007

Case Submitted on the Record

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

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from a February 6, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. As more than one year has elapsed since the last merit decision dated
February 7, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for review of the
merits of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On January 9, 1996 appellant, then a 39-year-old rural carrier, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome and thoracic outlet
1

20 C.F.R. §§ 501.2(c) and 501.3.

syndrome due to factors of her federal employment. She stopped work on December 22, 1995
and returned to work with restrictions on January 9, 1996. The Office accepted appellant’s claim
for bilateral carpal tunnel syndrome and an aggravation of brachial plexus lesions or thoracic
outlet syndrome.
The Office accepted that appellant sustained a recurrence of disability on
October 1, 2002. She worked four hours per day limited duty until May 25, 2004, when she
stopped work and did not return. On November 16, 2004 Dr. James Bethea, a Board-certified
orthopedic surgeon and Office referral physician, diagnosed bilateral hand and wrist pain and left
shoulder pain. He listed negative findings on examination for carpal tunnel syndrome.
Dr. Bethea found that appellant had no evidence of thoracic outlet syndrome and required no
work restrictions. Dr. Domenic J. DeMichele, a neurologist and appellant’s attending physician,
found that her employment-related condition had not resolved.
The Office referred appellant to Dr. Scott A. Stegbauer, a Board-certified orthopedic
surgeon, to resolve the conflict in medical opinion between Dr. Bethea and Dr. DeMichele
regarding whether she sustained an employment-related condition or disability. In a report dated
March 24, 2005, Dr. Stegbauer found that appellant had no objective evidence of thoracic outlet
syndrome. He diagnosed mild carpal tunnel syndrome which was not disabling. Dr. Stegbauer
opined that she could work four hours per day in her limited-duty position and also perform her
full-time regular employment duties.
By decision dated August 16, 2005, the Office terminated appellant’s compensation
effective September 4, 2005. The Office found that the weight of the medical evidence, as
represented by the opinion of the impartial medical examiner, established that she had no further
disability due to her accepted employment injury.2
On November 4, 2005 appellant requested reconsideration of her claim and submitted
additional medical evidence. In a decision dated February 7, 2006, the Office denied
modification of its August 16, 2005 decision terminating her wage-loss compensation.
Appellant, through her representative, again requested reconsideration on
January 25, 2007. She contended that Dr. Bethea and Dr. Stegbauer did not reference the
statement of accepted facts in their reports. Appellant resubmitted September 19 and
October 24, 2005 reports from Dr. R. Joseph Healy, a neurologist, a June 10, 2004 thoracic outlet
study and a September 19, 2005 cervical spine study and electromyogram (EMG). She also
submitted a May 9, 2005 thoracic outlet study by Dr. DeMichele, who found that the study was
abnormal and recommended clinical correlation.
In a report dated April 25, 2006, Dr. DeMichele diagnosed thoracic outlet syndrome. He
based the diagnosis on a history, physical examination and the results of a thoracic outlet
syndrome study. Dr. DeMichele noted that those who performed repetitive work were at
increased risk for thoracic outlet syndrome. In a duty status report dated August 30, 2006, he
diagnosed carpal tunnel syndrome and thoracic outlet syndrome and listed work restrictions. On

2

The Office did not terminate authorization for medical benefits.

2

May 30, 2006 Dr. DeMichele opined that appellant’s carpal tunnel syndrome and thoracic outlet
syndrome were worsening.
In a progress report dated December 18, 2006, Dr. Healy diagnosed bilateral carpal
tunnel syndrome and “thoracic outlet syndrome in the form of pectoralis minor syndrome.” He
stated:
“I have told [appellant] that she should not use her arms above the horizon and
this is in my note of October 2005. She says workers’ comp[ensation] is denied
because ‘no doctor has put that in the report’ but this has been her number one
most chronic problem for the past 12 years. I have told [appellant] that all the
workers’ comp[ensation] people have to do is to read my notes and it is all in
there.”
Dr. Healy also diagnosed carpal tunnel syndrome and recommended a change of
occupation.
By decision dated February 6, 2007, the Office denied appellant’s request for
reconsideration after finding that the evidence submitted was insufficient to warrant further merit
review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.4 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.8 While the reopening of a case may be predicated
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.607(a).

6

20 C.F.R. § 10.608(b).

7

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

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solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.9
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome and an
aggravation of brachial plexus lesions or thoracic outlet syndrome. Appellant stopped work on
May 25, 2004 and did not return. The Office found that a conflict existed between
Dr. DeMichele, her attending physician, and Dr. Bethea, who provided a second opinion
evaluation, on the issue of whether appellant had any further employment-related condition or
disability. The Office referred appellant to Dr. Stegbauer for an impartial medical examination.
In a report dated March 24, 2005, Dr. Stegbauer found that she had no objective findings of
thoracic outlet syndrome and had mild carpal tunnel syndrome which would not prevent her from
performing her usual employment duties. Based on his opinion, the Office terminated
appellant’s compensation for wage loss effective September 4, 2005.
In her request for reconsideration, appellant contended that Dr. Bethea’s report was of
little probative value as he did not refer to the statement of accepted facts. She also alleged that
neither Dr. Bethea nor Dr. Stegbauer “based their reports on the statement of accepted facts.”
Appellant, however, has failed to raise a legal argument showing how the physician’s failure to
specifically reference the statement of accepted facts was prejudicial or altered the outcome of
their reports. Thus, her argument does not have a reasonable color of validity such that it would
warrant reopening her case for merit review.10
Appellant resubmitted reports from Dr. Healy dated September 19 and October 24, 2005
and the results of diagnostic studies dated June 10, 2004 and September 19, 2005. As this
evidence duplicated evidence already in the case record, it does not constitute a basis for
reopening the case.11 Appellant additionally submitted a May 9, 2005 thoracic outlet study from
Dr. DeMichele who interpreted the study as abnormal and recommended clinical correlation.
The diagnostic study, however, is not relevant to the issues of whether appellant can perform her
employment duties and the causal relationship between any disability and her employment
injury. The Board has held that the submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case.12
On April 25, 2006 Dr. DeMichele diagnosed thoracic outlet syndrome and explained that
he based appellant’s diagnosis on a history, physical examination and the results of a thoracic
outlet syndrome study. He indicated that repetitive work increased the risk of thoracic outlet
syndrome. Dr. DeMichele’s report did not address the relevant issue of whether appellant could

9

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

10

Elaine M. Borghini, 57 ECAB ___ (Docket No. 05-1102, issued May 3, 2006).

11

Arlesa Gibbs, 53 ECAB 204 (2001).

12

Ronald A. Eldridge, 53 ECAB 218 (2001).

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perform her employment duties. As discussed, the submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening a case.13
In an August 30, 2006 form report, Dr. DeMichele diagnosed carpal tunnel syndrome and
thoracic outlet syndrome. He listed work restrictions. On May 30, 2006 Dr. DeMichele opined
that appellant’s carpal tunnel syndrome and thoracic outlet syndrome were worsening. His
reports, however, are substantially similar to his prior reports of record and thus do not constitute
relevant new evidence.14
On December 18, 2006 Dr. Healy diagnosed bilateral carpal tunnel syndrome and
thoracic outlet syndrome. He found that she should not work with her arms “above the horizon.”
Dr. Healy referred the Office to his treatment notes. His report, however, is substantially similar
to his previous report dated October 24, 2005 and, consequently, is cumulative in nature and
insufficient to warrant reopening the case for merit review.15
On appeal, appellant contends that she submitted objective tests which establish that she
has thoracic outlet syndrome. As discussed, however, the relevant issue is whether she has any
disability from employment related to her employment injury.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. She did not meet any of the necessary
regulatory requirements, and therefore she is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for review of the
merits of her claim under 5 U.S.C. § 8128.

13

Id.

14

See Severiano Marquez, 41ECAB 637 (1990).

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2007 is affirmed.
Issued: October 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.I., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE,
Boulder, CO, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-433
Issued: August 25, 2009

Case Submitted on the Record

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

JURISDICTION
On December 1, 2008 appellant, through her representative, filed a timely appeal from
the October 17, 2008 merit decision of the Office of Workers’ Compensation Programs, which
denied her emotional injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s major depressive disorder is causally related to the
accepted factors of employment. Appellant’s representative argues that there is a conflict of
medical opinion.
FACTUAL HISTORY
On February 12, 2004 appellant, then a 38-year-old customer services supervisor, filed a
claim alleging that she developed depression and occupational stress while in the performance of
duty: “I have been an employee of the USPS since February 1991. I came to the realization that
my place of employment caused a depressing and stressful environment for me.” The Office
accepted that appellant supervised 27 clerks and mail handlers, that for one week she reported to

work at 4 a.m., and that an employee whom she had previously disciplined called her “bitch” on
the workroom floor. However, on August 17, 2004 it denied her claim for compensation on the
grounds that the medical evidence did not establish a causal relationship between these
compensable factors of employment and a diagnosed medical condition. This decision was
affirmed by an Office hearing representative, as modified, on July 18, 2005.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Kenneth D. Krause, a Board-certified psychiatrist. On October 2, 2006
Dr. Krause noted the incidents the Office accepted as occurring in the performance of duty and
those it did not accept. He reviewed the relevant medical reports. Dr. Krause related appellant’s
history, findings on mental status examination, and diagnosed major depressive disorder,
recurrent, moderate. He reported that the accepted factors of employment did not cause
appellant’s diagnosis. Dr. Krause stated that he did not find a causal relationship.
On October 13, 2006 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision. It found that the weight of the medical opinion evidence
rested with Dr. Krause, who based his opinion on the statement of accepted facts and who
provided an in-depth analysis of background, family and social history and mental status.
Appellant submitted an August 23, 2007 report from Dr. Gerald S. Fredman, a Boardcertified psychiatrist, who reviewed the statement of accepted facts, the Office’s October 13,
2006 decision and Dr. Krause’s reports. Dr. Fredman related appellant’s history in some detail
and his findings on clinical evaluation. He offered a principal diagnosis of major depressive
disorder, recurrent, severe. Dr. Fredman stated that appellant’s problem with depression started
in March 2000, before she began working in Boulder, but that the accepted factors of
employment aggravated her condition. He stated: “Based on the history I obtained and records
reviewed, there was development of more serious symptoms and limitations following these
incidents.”
Dr. Fredman disagreed with Dr. Krause’s opinion that there was no relationship between
the accepted factors of employment and appellant’s emotional disability. He believed her
problem with depression worsened as a result of the accepted work-related incidents.
Dr. Fredman noted that the historical information appellant provided was corroborated in the
correspondence and records of Dr. Anderson. He stated: “In my opinion the incidents that
occurred in the performance of job duties at the [employing establishment], as outlined in the
statement of accepted facts, did aggravate the major depressive disorder causing more serious
symptoms and dysfunction. This worsening of her condition ultimately led to her inability to
continue her job duties.”
In a decision dated October 17, 2008, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decisions. It found that Dr. Fredman’s opinion lacked
sufficient rationale to create a conflict of medical opinion with Dr. Krause and did not warrant
referral for a referee examination.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 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,4 must be one of reasonable medical certainty,5
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.6
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7 But a conflict of medical opinion must actually exist as determined by
weighing the medical evidence. The Office must decide the relative value of opposing opinions
in the medical record, giving consideration to all factors of physician specialty and
qualifications, completeness and comprehensiveness of evaluations and rationale and consistency
of opinions. If a significantly greater weight cannot be assigned by the Office to one opinion,
then it is proper to determine that a conflict in medical opinion exists and that a referee medical
examination is appropriate.8

1

5 U.S.C. § 8102(a).

2

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

3

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

4

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

5

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

6

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

7

5 U.S.C. § 8123(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11.c(1) (April 1993).

3

ANALYSIS
The Office accepted that appellant established three compensable factors of employment.
It is therefore her burden to establish by the weight of the medical opinion evidence that one or
more of these factors caused or contributed to her major depressive disorder.
Dr. Krause, a Board-certified psychiatrist and Office referral physician, found that none
of the three accepted factors of employment caused appellant’s major depressive disorder in any
sense. He stated that he did not see a relationship between those factors and appellant’s
diagnosis.
Dr. Fredman, a Board-certified psychiatrist and appellant’s physician, reviewed
Dr. Krause’s opinion and disagreed. Although appellant’s problem with depression started
before she began working in Boulder, the accepted factors of employment aggravated her
condition, causing more serious symptoms and dysfunction, as the medical record corroborated.
The Board has carefully reviewed these reports and finds a conflict in medical opinion.
Both physicians related comprehensive histories. Both reviewed relevant medical evidence.
Both examined appellant and diagnosed major depressive disorder and both reviewed the
statement of accepted facts. On the issue of causal relationship, the physician making the
examination for the United States and the physician of the employee disagreed, and in doing so,
Dr. Fredman addressed Dr. Krause’s opinion and addressed why he disagreed on the issue of
causal relation. Under the circumstances, the Board finds a conflict in medical opinion
warranting referral to an impartial medical specialist under section 8123(a) of the Act.
The Board will set aside the Office’s October 17, 2008 decision and will remand the case
for a well-reasoned medical opinion from an impartial medical specialist. The specialist should
address the accepted factors of employment and whether they caused or aggravated appellant’s
major depressive disorder. After such further development as might be necessary, the Office shall
issue an appropriate final decision on appellant’s claim for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant’s major
depressive disorder is causally related to the accepted factors of employment. A conflict in
medical opinion warrants further development of the evidence.

4

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: August 25, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE,
Riverdale, MD, Employer
__________________________________________

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

Docket No. 20-1388
Issued: May 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 16, 2020 appellant filed a timely appeal from a February 13, 2020 merit decision
and a February 14, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b) as untimely filed; and (2) whether appellant has met her burden of
1
The Board notes that, following the February 14, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal.
2

5 U.S.C. § 8101 et seq.

proof to establish a medical condition causally related to the accepted September 19, 2019
employment incident.
FACTUAL HISTORY
On September 20, 2019 appellant, then a 60-year-old management and program analyst,
filed a traumatic injury claim (Form CA-1) alleging that on September 19, 2019 she injured her
left calf, neck, head, left shoulder, left arm, and left quad when she fell backwards over a dolly
while in the performance of duty. She explained that her injury could have been an exacerbation
of her existing spondylosis and lumbar spinal stenosis. On the reverse side of the claim form
appellant’s supervisor checked a box marked “No” to indicate her opinion that appellant was not
in the performance of duty and contended that, while she was at work when her injury occurred,
she was not performing her typical duties because she was overseeing the activities of a contractor
who was moving office equipment. Appellant did not stop work.
In a September 25, 2019 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
Appellant submitted an April 4, 2016 diagnostic report in which Dr. Adam Scherr, a Boardcertified diagnostic radiologist, performed a magnetic resonance imaging (MRI) scan of her
lumbar spine, finding multilevel degenerative disc disease, degenerative spondylosis and disc
bulges, central canal stenosis, moderate bilateral neural foraminal stenosis at L3-4, mild left L2-3
neural foraminal stenosis and a left posterior paracentral annular tear at L5-S1.
In a September 11, 2019 medical report, Dr. Christopher Magee, a Board-certified
orthopedic surgeon, evaluated appellant for pain in her lower back and lumbar spine. He diagnosed
spinal stenosis of the lumbar spine and low back pain.
A September 19, 2019 medical note with an illegible signature indicated that appellant was
injured when she tripped over a moving dolly, fell backwards and landed on her left side earlier
that day. The provider advised that she should use rest, ice, compression, and elevation to treat
the afflicted areas and to follow up with urgent care.
In a September 25, 2019 medical report, Stella Meusch, a physician assistant, evaluated
appellant for pain in her lower back and left shoulder after she fell backwards.
In a diagnostic report of even date, Dr. Islamiat Ego-Osuala, a Board-certified radiologist,
performed an x-ray of appellant’s lumbosacral spine. She found mild lumbar levoscoliosis and
moderate degenerative disc disease at L4-5.
In a September 25, 2019 medical note, Ms. Meusch diagnosed dorslagia, unspecified and
pain in the left shoulder. She referred appellant to physical therapy for further treatment.
In a September 27, 2019 statement, appellant described the events of the September 19,
2019 employment incident in which movers were in her office moving equipment. She noted that
she stepped back and, when her left foot made contact with a dolly, she lost balance and fell and,
2

landed on her back. The movers then helped her up. Appellant explained that she did not hit her
head, but the way she landed caused her to hyperextend her “left trap” and the surrounding
muscles. She indicated that she was in the performance of duty as she was at her duty station and
preparing her workstation for work that day.
In an October 7, 2019 medical report, Dr. Rajiv Dua, Board-certified in family medicine,
evaluated appellant for back pain as well as paresthesias in her bilateral arms and hands. He also
observed her previous conditions, including spinal stenosis of the lumbar region beginning
March 15, 2017.
In an October 11, 2019 witness statement, J.T., a contractor, explained that he was helping
to move equipment in appellant’s office on September 19, 2019 when she started backing up, hit
a cart on one end and fell down. In a separate witness statement, D.F., another contractor, again
explained that he was helping to move equipment and, as appellant was backing up, he heard a
noise, turned around, and saw that she had fallen.3
In an October 14, 2019 response to OWCP’s development questionnaire, appellant again
explained the events of the September 19, 2019 employment incident. She indicated that she fell
onto a metal dolly causing her severe back pain and an overextension of her neck and shoulder.
Appellant also noted her previous diagnoses of bursitis and spinal stenosis. She included a timeline
of relevant events, beginning on September 11, 2019, where she was diagnosed with trochanteric
bursitis of the left hip, the September 19, 2019 employment incident, as well as her subsequent
medical treatment and physical therapy.
In an October 21, 2019 diagnostic report, Dr. David Porter, a Board-certified radiologist,
performed an MRI scan of appellant’s lumbar spine, finding multilevel degenerative disc disease.
By decision dated November 12, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a diagnosis in connection
with her claimed injury. It concluded, therefore, that the requirements had not been met to
establish an injury as defined under FECA.
On November 15, 2019 appellant requested reconsideration of OWCP’s November 12,
2019 decision. She explained that Dr. Magee reviewed her MRI scans and diagnosed an
exacerbation of her stenosis with symptoms that were not associated with her preexisting
conditions.
In a November 15, 2019 medical report, appellant informed Dr. Magee that she fell
backwards over a dolly at work and injured her back. Dr. Magee diagnosed spinal stenosis of the
lumbar region, a low back strain, and a contusion of the lumbar nerve root. He noted that the onset
of her spinal stenosis was September 11, 2019 and the onset of her low back strain was
November 15, 2019. Dr. Magee referred appellant to physical therapy for treatment of her
conditions.

3
Appellant also attached comments to the two witness statements in which she clarified that she did not make
contact with the wall when she fell, she made a loud noise and did not catch herself when she fell.

3

By request form dated November 20, 2019 and received by OWCP on December 30, 2019,
appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review.
OWCP received a September 30, 2019 medical report, wherein Dr. Hugh House, a Boardcertified orthopedic surgeon, evaluated appellant for left shoulder, left hip, and low back pain. Dr.
House noted that appellant had low back pain for a while and that she exacerbated her symptoms
when she fell on her left side a couple of weeks prior. On review of her x-ray scans, he diagnosed
other spondylosis, lumbar region, low back pain, and trochanteric bursitis of the left and right hips.
In a November 21, 2019 attending physician’s report (Form CA-20), Dr. Magee diagnosed
lumbar spinal stenosis and checked a box marked “Yes” to indicate his opinion that appellant’s
condition was caused by the September 19, 2019 employment incident. He noted that she fell
backwards over a dolly, hitting her left shoulder, left calf, neck, and back.
By decision dated February 13, 2020, OWCP affirmed the November 12, 2019 decision,
as modified, to find that the new evidence was sufficient to establish the medical component of
fact of injury. The claim remained denied, however, because appellant failed to submit a
rationalized opinion from her treating physician explaining how her diagnosed conditions were
causally related to the accepted September 19, 2019 employment incident.
By decision dated February 14, 2020, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request. It found that the request was untimely filed, as it was not received
until “December 31, 2019,”4 more than 30 days after its November 12, 2019 merit decision. After
exercising its discretion, OWCP further found that the issue in the case could equally well be
addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
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.”5
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
representative of the Secretary.6 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.7
Although there is no right to a review of the written record or an oral hearing, if not requested
4
OWCP’s decision noted that appellant’s request for an oral hearing was received on December 31, 2019; however,
this appears to be a typographical error as the Integrated Federal Employees’ Compensation System (iFECS) indicates
that OWCP received appellant’s request on December 30, 2019.
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. §§ 10.616, 10.617.

7

Id. at § 10.616(a).

4

within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
OWCP’s procedures provide that the request is timely if it was mailed (as determined by
the postmark or other carrier’s date marking) within 30 days of the date of the district office’s
decision. If the postmark is not legible, the request will be deemed timely unless OWCP has kept
evidence of date of delivery in the record reflecting that the request is untimely.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b) as untimely filed.
While OWCP noted in its February 14, 2020 decision that the appeal form was not received
until December 30, 2019, the envelope or other evidence of the carrier’s mark was not retained in
the record. As the record lacks evidence of the postmark or other evidence from which the date of
the mailing could be established, the hearing request is deemed timely.9 Upon return of the case
record, OWCP shall schedule an appropriate hearing before a representative of OWCP’s Branch
of Hearings and Review.10
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b) as untimely filed.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4a (October 2011).
9

Id.; see also R.C., Docket No. 19-0949 (issued June 24, 2020).

10

In light of the Board’s disposition of Issue 1, Issue 2 is in an interlocutory posture.

5

ORDER
IT IS HEREBY ORDERED THAT the February 14, 2020 decision of OWCP is reversed
and the February 13, 2020 decision of the Office of Workers’ Compensation Programs is set aside
as moot. The case is remanded for further proceedings consistent with this decision of the Board.
Issued: May 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crete, IL, Employer
__________________________________________

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

Docket No. 15-151
Issued: March 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 28, 2014 appellant, through her attorney, filed a timely appeal from a May 8,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated compensation for wage-loss and
medical benefits effective September 9, 2013.
FACTUAL HISTORY
On November 9, 2012 appellant, then a 37-year-old rural carrier, file a traumatic injury
claim (Form CA-1) alleging that on November 2, 2011 she injured her low back while clearing

1

5 U.S.C. § 8101 et seq.

out her vehicle at the end of the day. OWCP accepted the claim on January 26, 2012 for
sacroiliitis. Appellant stopped working and began receiving wage-loss compensation.
OWCP prepared a statement of accepted facts (SOAF) and referred appellant, along with
medical records, to Dr. Allan Brecher, a Board-certified orthopedic surgeon. In a report dated
May 8, 2012, Dr. Brecher provided a history and results on examination. He noted that appellant
had mild tenderness in the mid lumbar spine, with no real pain over the sacroiliac joints.
Dr. Brecher reported that a magnetic resonance imaging (MRI) scan showed a L4-5 paracentral
protrusion, with mild neuroforaminal narrowing L4-S1. He opined that the objective
examination was essentially normal, with subjective complaints of pain. Dr. Brecher stated that
there were no findings to suggest sacroiliitis, and no objective findings of residuals of the
employment injury. He found appellant had no work restrictions.
In a report dated July 25, 2012, appellant’s treating physician, Dr. Ernesto Padron, a
Board-certified family practitioner, indicated that he had reviewed Dr. Brecher’s report. He
indicated that joint injections had provided only minimal relief, and appellant continued to have
radicular symptoms. Dr. Padron provided results on examination and opined that she had not
returned to baseline. He recommended a functional capacity evaluation (FCE). The record
indicates appellant underwent an FCE on August 3, 2012.
In a report dated September 25, 2012, Dr. Padron stated that appellant remained
symptomatic, with left lower radiculopathy and limited range of motion. He stated that she was
injured on the job with positive MRI scan findings. Dr. Padron indicated that he had not
reviewed the FCE. In a report dated October 10, 2012, he stated that appellant could return to
work with restrictions. The record indicates that appellant returned to part-time, light-duty work
on October 17, 2012 and received partial wage-loss compensation offset by her actual earnings.2
OWCP found a conflict existed with respect to whether appellant continued to have
residuals of the employment injury. Dr. Robert Ellis, a Board-certified orthopedic surgeon, was
selected as a referee physician to resolve the conflict. In a report dated March 20, 2013, he
provided a history, reviewed medical records, and noted results on examination. Dr. Ellis
reported some mild tenderness over the L4 and L5 spinous processes and right and left
trochanteric regions, with diminished range of motion. He reported no palpable par spinal
spasm, no pain on compression of pelvis, and no S1 joint tenderness. According to Dr. Ellis, an
April 20, 2012 MRI scan showed chronic degenerative lumbar disc disease. He opined that
appellant had sustained an aggravation of her preexisting degenerative condition on
November 2, 2011. Dr. Ellis further stated,
“Based on a reasonable degree of medical certainty and based on the findings on
examination, the claimant has no evidence of a diagnosis of a sacroiliitis. Based
on a reasonable degree of medical certainty, [appellant] has no other residuals
related to her injury of November 2, 2011. Based on a reasonable degree of

2

OWCP did not issue a formal wage-earning capacity decision. By decision dated March 25, 2013, it found that
appellant received total disability wage-loss compensation through October 20, 2012 and an overpayment of
$185.99 was created. Recovery of the overpayment was administratively terminated as it was less than $200.00.

2

medical certainty, she is able to return to work and is able to carry out the duties
of a rural mail carrier as defined in the SOAF.”
He concluded that appellant’s current symptoms were related to progression of her chronic
degenerative lumbar disc disease and obesity.
By letter dated July 1, 2013, OWCP notified appellant that it proposed to terminate
compensation for wage-loss and medical benefits. It stated that the weight of the medical
evidence was represented by Dr. Ellis, and appellant should submit evidence within 30 days if
she disagreed with the proposed action.
On July 23, 2013 appellant submitted a July 15, 2013 report from Dr. Padron, who
indicated that Dr. Ellis had stated that appellant was not tender at the sacroiliac joint, but
appellant did complain of pain to Dr. Ellis on palpation. Dr. Padron diagnosed lumbago,
thoracic or lumbosacral neuritis or radiculitis, displacement of lumbar intervertebral disc, and
sacroiliitis. On August 7, 2013 appellant submitted a July 29, 2013 report from him with results
on examination and the same diagnoses as the July 15, 2013 report.
By decision dated September 9, 2013, OWCP terminated compensation for wage-loss
and medical benefits. It found the weight of the evidence was represented by Dr. Ellis.
Appellant requested a hearing. At the March 11, 2014 hearing, she stated that Dr. Ellis
found no residuals because he reported no tenderness in the sacroiliac region and that this was
contrary to the findings of Dr. Padron.
By decision dated May 8, 2014, an OWCP hearing representative affirmed the
September 9, 2013 termination of wage-loss compensation and medical benefits. She found the
weight of the medical evidence represented by Dr. Ellis.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.3 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.4
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.5 The implementing regulations state that if a
3

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

4

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

5

5 U.S.C. § 8123(a).

3

conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6
To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.7 Medical rationale is a medically sound explanation for the opinion offered.8
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9
ANALYSIS
In the present case, OWCP found that a disagreement existed between Dr. Padron, the
attending physician, and Dr. Brecher, the second opinion physician, as to whether appellant
continued to have residuals of the November 2, 2011 employment injury. Dr. Brecher found an
essentially normal examination with no evidence of residuals of the employment injury.
Dr. Padron indicated that appellant continued to have residuals of the employment injury that
resulted in work restrictions.
In accord with 5 U.S.C. § 8123(a), OWCP properly referred the case to Dr. Ellis for a
referee examination and an opinion as to whether appellant continued to have
employment-related residuals. In a report dated March 20, 2013, Dr. Ellis provided a history,
results on examination, and reviewed medical evidence. Based on an accurate factual and
medical background, he opined that appellant did not have residuals of the employment injury.
Dr. Ellis found no evidence of the accepted condition of sacroiliitis. He indicated that appellant
had aggravated a preexisting degenerative lumbar condition on November 2, 2011, but he found
no continuing aggravation.
In his July 15, 2013 report, Dr. Padron stated that Dr. Ellis based his opinion on a lack of
S1 joint tenderness. At the March 11, 2014 hearing, appellant had argued that Dr. Ellis based his
opinion on an inaccurate examination finding. However, Dr. Ellis reported his findings based on
the physical examination he performed. A review of the March 20, 2013 report does not
establish that his opinion was based on a single examination finding. As noted, Dr. Ellis
provided results on examination that reported some lumbar tenderness and diminished range of
motion. He based his opinion on all examination results, diagnostic studies, and medical history.
6

20 C.F.R. § 10.321.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

4

Dr. Ellis explained that appellant had a preexisting degenerative condition and that current
symptoms were related to the preexisting condition, not the employment injury. This represents
a medically sound explanation of the opinion offered.
The Board therefore finds that Dr. Ellis provided a rationalized medical opinion in this
case. As a referee physician, Dr. Ellis’ report is entitled to special weight. The Board finds that
OWCP met its burden of proof to terminate wage-loss compensation and medical benefits
effective September 9, 2013.
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 OWCP met its burden of proof to terminate wage-loss compensation
and medical benefits effective September 9, 2013.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2014 is affirmed.
Issued: March 13, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elkins Park, PA, Employer
__________________________________________

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

Docket No. 19-0896
Issued: November 1, 2019

Case Submitted on the Record

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

JURISDICTION
On March 25, 2019 appellant filed a timely appeal from an October 17, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 6, 2018 appellant, then a 50-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 3, 2018 she sprained her right ankle due to “snow covered
steps” while in the performance of duty. She noted that she first sought medical treatment on
March 5, 2018. Appellant stopped work and notified her supervisor of her injury on
March 6, 2018.3
In support of her claim, appellant submitted prescription notes and form reports from
Dr. Bruni Leka, a podiatrist. In March 5 and 18, 2018 prescription notes, Dr. Leka reported that
appellant sustained an employment-related right ankle and ligament sprain, and restricted her from
returning to work. In a March 19, 2018 attending physician’s report (Form CA-20), she noted
findings of right ankle pain and swelling and diagnosed right ankle anterior talofibular ligament
(ATFL) sprain. Dr. Leka reported that appellant had slipped and sprained her right ankle when
walking down snow covered steps while delivering mail on March 3, 2018. She checked a box
marked “yes” when asked if the condition was caused or aggravated by the employment incident.
In a March 19, 2018 duty status report (Form CA-17), Dr. Leka diagnosed right ankle sprain and
restricted appellant from returning to work. She reported that appellant was walking down steps
while delivering mail and slipped on ice and twisted her right ankle.
In a development letter dated April 6, 2018, OWCP informed appellant that she had not
submitted sufficient factual or medical evidence to establish her claim. It advised her of the type
of factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
In support of her claim, appellant submitted additional medical reports from Dr. Leka. In
a March 19, 2018 medical report, Dr. Leka reported that appellant presented for evaluation of a
right ankle sprain which occurred two and a half weeks prior during a work injury. She noted
findings of right lateral ankle swelling. Dr. Leka diagnosed right ankle acute ATFL ligament
sprain work injury. A stress fracture of the metatarsals was also noted as a chronic condition. In
an April 4, 2018 report, Dr. Leka reported that appellant’s pain and swelling in the right ankle had
improved. In a Form CA-17 of that same date, she released appellant to work for four to five hours
per day with restrictions.
By decision dated May 7, 2018, OWCP denied appellant’s claim finding that she had not
established fact of injury as the evidence of record was insufficient to establish that the March 3,
2018 employment incident occurred as alleged. It noted that appellant had not responded to
OWCP’s April 6, 2018 questionnaire. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
On May 30, 2018 appellant requested review of the written record by a representative of
OWCP’s Branch of Hearings and Review. In an accompanying narrative statement, she reported
that at approximately 11:00 a.m. on March 3, 2018 she was delivering mail. Appellant explained
that she was walking down steps at a customer’s residence when she “tripped” and fell on the
3
The record reflects that appellant has a February 24, 2017 occupational disease claim which was accepted for a
right foot stress fracture, assigned OWCP File No. xxxxxx514.

2

steps. She stated that the steps were covered with snow. Appellant reported that she fell on her
right side, experienced pain in her right ankle, and slowly walked back to her truck.
Appellant also submitted additional medical reports and CA-17 forms dated April 19
through May 31, 2018 from Dr. Leka. Dr. Leka recommended a magnetic resonance imaging
(MRI) scan of appellant’s right ankle to assess an acute ATFL tear of the right foot. She released
appellant to work with restrictions and recommended an ankle brace.
In a May 3, 2018 narrative report, Dr. Leka reported that appellant was under her care for
the March 3, 2018 employment-related injury which occurred while appellant was delivering mail.
She reported that appellant was descending snow covered steps of a house when she twisted her
right ankle and suffered an inversion sprain and ATFL ligament tear as a result. Dr. Leka evaluated
appellant on March 5, 2018 after her pain and swelling had not improved. She reported that
appellant’s symptoms had currently improved, but had not fully resolved. Dr. Leka noted that
appellant was working six to eight hours per day, five days per week as tolerated.
By decision dated October 17, 2018, OWCP’s hearing representative affirmed the May 7,
2018 decision, as modified, finding that appellant had established that the March 3, 2018
employment incident occurred as alleged. However, it denied the claim finding that the medical
evidence of record was insufficient to establish that appellant’s diagnosed right ankle condition
was causally related to the accepted March 3, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); 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
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.
In a March 19, 2018 Form CA-20, Dr. Leka diagnosed right ankle ATFL sprain. She
reported that appellant slipped and sprained her right ankle in the snow while walking down the
steps delivering mail on March 3, 2018. Dr. Leka checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by the employment incident. The Board has held
that a checkmark or affirmative notation in response to a form question on causal relationship is
insufficient, without medical rationale, to establish causal relationship.11 Rather, a physician must
provide a narrative description of the identified employment incident and a reasoned opinion
explaining how the employment incident described caused or contributed to appellant’s diagnosed
medical conditions.12 This report is therefore insufficient to establish appellant’s claim.13
In a May 3, 2018 narrative report, Dr. Leka reported that on March 3, 2018 appellant was
walking down snow covered steps and twisted her right ankle while delivering mail, resulting in
an inversion sprain and ATFL ligament tear. However, the Board finds that Dr. Leka’s general
statement on causation failed to provide any explanation as to the mechanism of injury pertaining
to this traumatic injury claim, namely, how twisting the right ankle while slipping on snow covered
steps would cause a right ankle sprain and ATFL tear.14 Her brief statement on causal relationship
is conclusory in nature, as it does not contain an explanation of how the March 3, 2018
employment incident physiologically caused, contributed to, or aggravated the specific diagnosed

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

M.K., Docket No. 19-0428 (issued July 15, 2019); S.S., Docket No. 18-1488 (issued March 11, 2019).

11

S.S., Docket No. 19-0675 (issued August 22, 2019).

12

See V.J., Docket No. 17-0358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

13

K.S., Docket No. 18-1781 (issued April 8, 2019).

14

J.K., Docket No. 19-0462 (issued August 5, 2019).

4

conditions.15
relationship.

Dr. Leka’s May 3, 2018 report is therefore insufficient to establish causal

In support of her claim, appellant also submitted prescription notes dated March 5 and 18,
2018; a March 19, 2018 Form CA-17 and a narrative report of even date; an April 4, 2018 Form
CA-17 and a narrative report of even date; and additional medical reports and Form CA-17s dated
April 19 through May 31, 2018 from Dr. Leka. None of these reports, however, provide an
opinion on the issue of causal relationship.16 While she provided diagnoses and provided
restrictions on appellant’s ability to return to work, she did not provide an opinion as to whether
the accepted March 3, 2018 employment incident had caused a diagnosed condition. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.17 These reports, therefore,
are insufficient to establish appellant’s claim.
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the March 3, 2018 employment incident and appellant’s diagnosed right
ankle conditions.18 Thus, appellant has not met her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.

15
See M.S., Docket No. 19-0189 (issued May 14, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
B.H., Docket No. 18-1219 (issued January 25, 2019); Birger Areskog, 30 ECAB 571 (1979).
16

R.C., Docket No. 19-0376 (issued July 15, 2019).

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

K.L., Docket No. 18-1029 (issued January 9, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-690
Issued: September 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
On February 7, 2012 appellant filed a timely appeal from a January 24, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying reconsideration of his case
finding that his request was untimely and did not present clear evidence of error. The Board
docketed the appeal as No. 12-690.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. OWCP accepted appellant’s claim for binaural (both ears) loss of hearing.1 By
decision dated July 14, 2009, it granted him a schedule award for a 27 percent binaural hearing
loss. On October 24, 2011 appellant filed a claim (Form CA-7) for a schedule award. In support
of his claim, he submitted a September 28, 2011 audiogram from Thomas D. Burns, an
audiologist. By decision dated January 24, 2012, OWCP denied appellant’s request for
reconsideration as untimely filed and failing to establish clear evidence of error.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. A claim for an additional schedule award may
1

On October 15, 2008 appellant, then a 60-year-old engineering equipment operator, filed an occupational
disease claim alleging that on June 15, 1999 he first became aware of his hearing loss. However, it was not until
December 15, 1999 that he first realized the connection between his hearing loss and his employment duties.

be based on new exposure to employment factors or on the progression of an employmentrelated condition, without new exposure, resulting in greater permanent impairment.2
The Board finds that appellant has submitted new evidence in the form of the
September 28, 2011 audiology report addressing a claim for an additional schedule award based
on a progression of his employment-related condition rather than on the basis that the original
schedule award was in error.3 The Board has repeatedly held that a claimant may request a
schedule award or increased schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.4 The Board finds, therefore, that OWCP erroneously
issued a denial of appellant’s request for reconsideration under the clear evidence of error
standard. On remand, OWCP should review and develop the medical evidence and issue an
appropriate decision regarding his request for an increased schedule award.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2012 is set aside and the case remanded for further
development consistent with this order of the Board.
Issued: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

R.L., Docket No. 09-1948 (issued June 29, 2010); B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB
622 (2005).
3

Rose V. Ford, 55 ECAB 449 (2004).

4

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K., supra note 2
(where it was evident that the claimant was seeking a schedule award based on new and current medical evidence,
OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an application for
reconsideration).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 17-0507
Issued: August 11, 2017

Case Submitted on the Record

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

JURISDICTION
On January 6, 2017 appellant filed a timely appeal of a December 9, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
back injury causally related to the factors of her federal employment.
FACTUAL HISTORY
On February 25, 2015 appellant, then a 63-year-old librarian, filed an occupational
disease claim (Form CA-2) alleging that, commencing January 20, 2015, she managed the library
1

5 U.S.C. § 8101 et seq.

in the absence of the library technician, who was on leave for 96 hours. She noted that she
performed all the tasks in the library including cleaning tables and computer keyboards, opening
large boxes of incoming books, shelving books, moving heavy mail containers, sorting mail,
checking serials, and opening large journal archive shelves. Appellant claimed that she injured
her back as a result of performing these duties.
By letter dated March 5, 2016, OWCP informed appellant that further medical evidence
was necessary to support her claim, and afforded her 30 days to submit this evidence.
OWCP thereafter received medical evidence, including a February 2, 2015 report of
Dr. Ashley Pullen, a Board-certified family practitioner. Dr. Pullen related that on February 2,
2015 appellant visited Baptist Medical Clinic at which time she complained of pain, onset two
weeks prior, severity level mild to moderate, but worsening. She noted that appellant’s
symptoms were aggravated by daily activities and relieved by heat and over the counter
medications. Dr. Pullen assessed appellant with back pain, onset two weeks prior. She also
diagnosed osteoporosis, pleurisy, and lower urinary tract infection. In a report detailing a
February 19, 2015 visit, Dr. Pullen noted that appellant’s pain worsened at work when pushing a
heavy cart. She reiterated appellant’s diagnoses. Dr. Pullen also noted that appellant had
thoracic as well as lumbar back pain and a history of osteoporosis. She indicated that appellant
needed a magnetic resonance imaging (MRI) scan to rule out possible vertebral fractures.
Dr. Darin J. Hildoer, a diagnostic radiologist, interpreted a February 24, 2015 MRI scan
of appellant’s thoracic spine as showing acute to subacute mild-to-moderate compression
fracture of the T5 vertebral body; acute mild compression fracture of the T6 vertebral body;
minimal retropulsion of bone into the spinal canal; and minimal, if any, significant impingement
of the cord. He also noted multilevel degenerative changes in the thoracic spine and small leftsided pleura effusion.
In a March 13, 2015 note, Dr. Joseph Traina a Board-certified neurosurgeon, indicated
that appellant could not work until April 13, 2015 and at that time she could perform light duty
with lifting limited to 10 pounds and occasional bending with frequent changes of position. In a
report of the same date, he noted that she had an employment injury on January 20, 2015 and a
second injury of lifting heavy books on February 17, 2015. Dr. Traina noted that appellant had
an MRI scan which demonstrated a thoracic five and six fracture with no retropulsion of bone.
He noted that she had been wearing a brace. Dr. Traina related that appellant had no prior
history of injury in that area. He opined that she could not currently return to work, but could
resume work on April 13, 2015 if her pain resolved and if she was no longer wearing the brace.
Dr. Traina noted that, when appellant resumed work, she should be restricted to occasional
bending and lifting no more than 10 pounds.
In a letter dated March 31, 2015, Ann Demrow, a training administrator for the
employing establishment, stated that on February 17, 2015 appellant reported that she had
injured her back while removing 40 books off the library shelf, placing them onto a cart, and
pushing the cart of books to the circulation desk where the library technician worked. She noted
that appellant also indicated that she suffered back strain on January 20, 2015 while the library
technician was on scheduled leave. Ms. Demrow stated that appellant had mentioned this to her
in passing in early February 2015, but Ms. Demrow had no recollection of the conversation. She

2

noted that occupational health placed appellant on bed rest and gave her a brace to wear.
Ms. Demrow stated that, when and if appellant resumed work on April 13, 2015, she was
restricted to occasional bending only and lifting no more than 10 pounds.
By decision dated April 29, 2015, OWCP denied appellant’s claim. It determined that,
although she had established the employment factors and a medical diagnosis, her claim was
denied as she failed to establish that the diagnosed medical conditions were causally related to
the accepted employment factors.
On June 5, 2015 appellant requested review of the written record by an OWCP hearing
representative. By decision dated June 24, 2015, OWCP denied her hearing request as it was
untimely filed. It also reviewed the request and determined that the issue could equally well be
addressed by requesting reconsideration and submitting new evidence.
On January 4, 2016 appellant requested reconsideration. She alleged that her preexisting
condition of osteoporosis was worsened by her employment-related injuries of January 20 and
February 17, 2015. Appellant noted that she was in constant musculoskeletal discomfort in her
thoracic and lumbar spine, which caused her to be in physical therapy to relieve aggravation.
Following OWCP’s last merit review on April 29, 2015, appellant submitted an April 27,
2015 report wherein Dr. Traina indicated that he saw her on March 13, 2015 and that she
reported a January 20, 2015 back injury at work. Dr. Traina indicated that she recuperated from
that incident, but that, on February 17, 2015 while she was moving heavy books, she felt a sharp
pain in her mid-back. He noted that he reviewed appellant’s thoracic MRI scan which showed
an acute fracture with no retropulsion of T5 and T6, and that he advised her to wear a brace for
the next three months. In a June 26, 2015 progress report, Dr. Traina diagnosed fracture of
thoracic vertebra, closed, with osteoporosis. He noted that appellant could continue working
light duty.
In a March 26, 2015 report, Dr. David Melvin Walker noted that appellant was seen for
follow-up of an employment-related injury to her thoracic spine. He noted that she reported that
she was still experiencing a lot of pain in her thoracic spine as well with a new complaint of pain
in her left subscapular region. Dr. Walker diagnosed compression fracture of thoracic spine
T5-6. He prescribed rest and was off work until her next appointment with a neurosurgeon on
March 13, 2015.
In duty status reports dated March 13 and April 2, 2015, Dr. Traina indicated that
appellant sustained fractures to her back causally related to extra work she performed in the
library on January 20, 2015 and a subsequent February 17, 2015 injury that she sustained during
heavy pushing of a library cart. He noted limitations on her ability to work.
In a June 15, 2015 note, Dr. Pullen noted that appellant had a history of osteoporosis.
She noted that appellant was seen on February 19, 2015 for back and side pain that began after
moving heavy books in the library. Dr. Pullen noted that appellant was seen by the employing
establishment’s health center the prior day and was diagnosed with pleurisy. She noted that, due
to appellant’s history of osteoporosis, she recommended an MRI scan of the spine to rule out
compression fractures as the heavy lifting could have resulted in a compression fracture of the

3

spine. Dr. Pullen noted that appellant had an MRI scan of the spine that did confirm acute
compression fractures of the spine. She concluded that appellant has been referred to and
followed by specialists since the diagnosis of vertebral compression fractures.
Appellant also submitted additional diagnostic tests. In a February 25, 2015 MRI scan of
the cervical spine, Dr. Hildoer found degenerative changes in the spine. He noted disc
desiccation at T11-12, mild disc desiccation at L2-3 with minimal broad-based disc protrusion
and mild ligamentous flavus hypertrophy, but no significant central panel or neurofemoral
narrowing; at L3-4 he found disc desiccation with minimal broad-based disc protrusion and
ligamentum flavum hypertrophy, but no significant central canal narrowing; at L4-5 he found
mild disc desiccation with mild ligament flavum hypertrophy; and at L5-S1 he found disc
desiccation with mild degenerative changes of the posterior facet joint and mild-to-moderate
narrowing of the bilateral neural foraminal. Dr. Walker also cosigned nursing notes and an MRI
scan from February 24 and 25, 2015, which found status post fracture of thoracic spine and back
pain.
Finally, appellant submitted a December 18, 2015 report by Dr. Jeffrey S. Ritter, a
Board-certified rheumatologist, who noted that she was considered osteoporotic therefore he
explained that her risk of fracture was high. He recommended a follow-up bone density test.
By decision dated February 3, 2016, OWCP denied modification of its April 29, 2015
decision as it determined that the evidence submitted on reconsideration continued to lack a
physician’s affirmative opinion, based on an accurate history of injury or work factors and based
on objective findings on examination, supporting a cause and effect relationship between the
work factors and any diagnosed condition.
On September 27, 2016 appellant again requested reconsideration. She argued that her
preexisting condition of osteoporosis was worsened by her employment duties. Appellant also
contended that her supervisor’s description of her job duties was inaccurate. She discussed the
medical evidence of record, and argued, inter alia that the medical reports from February 2015
showed fresh fractures. Appellant noted that physical therapy was prescribed, and that she
continued to work under restrictions. She also described the work conditions in February 2015.
OWCP continued to receive medical evidence. In a March 4, 2015 report, Dr. Walker
noted that appellant was still experiencing a lot of pain in the thoracic spine as well as a new
complaint of pain in her left subscapular region. He diagnosed compression fracture of the
thoracic spine T5-6. Dr. Walker recommended continued conservative management and noted
that her prognosis was good.
In a June 11, 2015 report Dr. Emma Marie Bisson, a Board-certified radiologist,
interpreted an MRI scan of the cervical spine as showing multilevel degenerative changes within
the cervical spine and abnormal signal within the T5 and T6 vertebra bodies.
In a September 23, 2016 report, Dr. Pullen indicated that appellant was employed as a
librarian and was known to lift and push heavy objects and loads of papers/books. She stated
that appellant began to notice pain in her mid and lower back after lifting heavy objects, and was
evaluated in the employee health office and was diagnosed with pleurisy. Dr. Pullen noted that,

4

after appellant failed therapy with nonsteroidal anti-inflammatory drugs, she was evaluated for
worsening of the same complaints. Appellant had x-rays that were within normal limits, but the
back pain continued. She was referred for an MRI scan of her back for continued discomfort in
her back and history of osteoporosis of the spine. Dr. Pullen noted that appellant was diagnosed
with vertebral fractures. She explained that appellant had also been evaluated by a specialist,
and that the specialist agreed that appellant’s osteoporosis potentially increased her risk for
vertebral fractures with acute injuries or heavy lifting.
By decision dated December 9, 2016, OWCP determined that the evidence of record was
not of sufficient probative value to modify the February 3, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or on
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence which includes a physician’s rationalized opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5

2

Id.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

Id.

5

ANALYSIS
The Board finds that appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates appellant’s diagnosed conditions to the accepted
factors of her federal employment. For this reason, she has not discharged her burden of proof.
Dr. Pullen did not provide a definitive opinion indicating that appellant’s back condition
was causally related to factors of her federal employment. In her February 19, 2015 report, she
noted that appellant’s pain worsened at work when pushing a heavy cart. Dr. Pullen noted back
pain and diagnosed osteoporosis. At that time she indicated the “if the injury related to heavy
lifting at work, appellant may benefit from being followed though her [employing
establishment].” In a September 23, 2016 report, Dr. Pullen indicated that appellant was known
to lift and push heavy objects and books, and began to notice pain when lifting heavy objects.
She noted that appellant was diagnosed with vertebral fractures and that osteoporosis increased
her risks for vertebral fractures with heavy lifting. Dr. Pullen’s opinions are speculative and
equivocal in nature. She never definitively stated that either appellant’s osteoporosis or her
vertebral fractures were caused by her federal employment. The Board has held that medical
opinions which are speculative or equivocal in character have little probative value.6
Dr. Traina opined that appellant sustained fractures to her back causally related to extra
work she performed in the library on January 20, 2015 and subsequently on February 17, 2015
when she was pushing a heavy library cart. However, a mere conclusion without the necessary
rationale explaining how and why the physician believes that the accepted factors of appellant’s
employment resulted in the diagnosed condition is insufficient to meet her burden of proof.7
Neither the fact that a disease or condition manifested itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by an
employment factor or incident is sufficient to establish causal relationship.8
Similarly, Dr. Walker merely noted that appellant indicated that she hurt herself during
an employment-related injury; he did not provide any independent explanation as to causation.
Generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how
physical activity actually caused the diagnosed conditions.9
Dr. Ritter noted that appellant was at an increased risk for fractures due to osteoarthritis;
he did not address appellant’s specific employment factors or explain any causal relationship.

6

S.S., Docket No. 14-0272 (issued July 8, 2014).

7

G.M., Docket No. 14-2057 (issued May 12, 2015).

8

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

9

A.M., Docket No. 14-1399 (issued September 23, 2014).

6

The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.10
Similarly, appellant submitted the results of various diagnostic studies, including images
interpreted by Dr. Hildoer, Dr. Bisson, and Dr. Walker. However, these studies are of limited
probative value as they do not address whether appellant’s employment activities caused the
diagnosed conditions.11
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.12 Appellant’s honest belief that her employment
activities caused her medical injury is not in question, but that belief, however sincerely held,
does not constitute medical evidence to establish causal relationship.13 She failed to meet her
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.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a back injury causally related to the factors of her federal employment.

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

Supra note 7.

12

D.D., 57 ECAB 734 (2006).

13

H.H., Docket No. 16-0509 (issued September 16, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2016 is affirmed.
Issued: August 11, 2017
Washington, DC

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

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

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

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