United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SURFACE WAR CENTER, Port Hueneme, CA,
Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0770
Issued: October 8, 2015

Case Submitted on the Record

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

JURISDICTION
On February 27, 2015 appellant, through counsel, filed a timely appeal of a
November 14, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish disability on and
after July 19, 2010, causally related to her employment injury.
On appeal counsel argues that the evidence of record establishes appellant’s disability on
and after July 19, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 15, 2010 appellant, then a 46-year-old systems accountant, filed an occupational
disease claim (Form CA-2) alleging that on October 13, 2008 she first became aware of her mild
degenerative neck condition, but did not realize its connection to her employment until
June 22, 2010. She stopped work on July 15, 2010 and resigned from the employing
establishment effective July 16, 2010.2
In an August 31, 2010 attending physician’s report (Form CA-20), Dr. Brigitta HufnagelPinney, a treating Board-certified family medicine physician, diagnosed cervical joint
spondylosis without myelopathy. She noted that appellant had just relocated to San Diego,
California from Woodland Hills, California. Dr. Hufnagel-Pinney advised appellant that she
could return to work on August 31, 2010.
On April 29, 2011 appellant submitted a July 7, 2010 report of Dr. Kien Ta, a
chiropractor, who diagnosed upper thoracic ribs subluxation, thoracic and cervical myofascial
pain syndrome due to upper thoracic ribs subluxation, cervical spine degenerative disc disease,
and cervical disc syndrome, which he attributed to appellant’s employment duties. A review of
an October 13, 2008 x-ray interpretation of the shoulders revealed no significant abnormality.
Dr. Ta also reviewed a June 18, 2010 x-ray and an August 23, 2010 magnetic resonance imaging
(MRI) scan of the cervical spine and found cervical degenerative changes. With respect to work
restrictions and disability, appellant related that she was unable to perform her normal job duties
due to functional limitation and pain as the result of an October 13, 2008 accident. Dr. Ta noted
that appellant has not worked since July 16, 2010.
On August 3, 2011 OWCP referred appellant to Dr. William P. Curran, a Board-certified
orthopedic surgeon, for a second opinion examination. In an August 22, 2011 report, Dr. Curran
reviewed the medical evidence, her employment history, and provided physical examination
findings. He noted that appellant was currently not working and that July 15, 2010 was her last
workday. Dr. Curran diagnosed myofascial pain syndrome, cervical spine central and neural
forminal spinal neurosis, cervical spine degenerative disc disease, and cervical spine
degenerative osteoarthritis, which he attributed to appellant working at a computer typing for
eight hours per day. He noted that appellant was totally disabled from working for the period
July 25, 2010 through August 23, 2011. On an attached OWCP work capacity evaluation form
(OWCP-5c), Dr. Curran provided permanent work restrictions and recommended an ergonomic
evaluation of her work space.
By decision dated September 15, 2011, OWCP accepted appellant’s claim for right
shoulder joint pain and cervical intervertebral disc degeneration based on the August 22, 2011
report by Dr. Curran.
In a September 26, 2011 report, Dr. James R. McClurg, an examining Board-certified
orthopedic sports medicine specialist, based upon a review of the medical evidence, job
description, and physical examination diagnosed cervical sprain/strain and right impingement
2

No reason was given for her resignation from the employing establishment on her notification of personnel
action (Form SF-50).

2

syndrome, which he attributed to her employment duties. He indicated that it was too early to
consider vocational rehabilitation, but that she was capable of working with restrictions.
The record also contains progress notes from Dr. McClurg for the period October 10,
2011 through July 2012, noting that appellant was seen for complaints of upper extremity
symptoms and pain. Dr. McClurg provided physical examination findings, reviewed objective
tests, and diagnosed cervical sprain/strain and right impingement syndrome. He indicated that
appellant was capable of working with restrictions in the progress and disability notes. The
restrictions included limited right upper extremity use, no repetitive overhead reaching or lifting,
no repetitive pulling or pushing, lifting up to 10 pounds, and rotating job tasks.
On October 13, 2011 appellant filed a claim for wage-loss compensation (Form CA-7)
claiming wage-loss compensation commencing July 19, 2010 to the date of the claim.
By letter dated October 18, 2011, OWCP informed appellant that the evidence submitted
was insufficient to establish her claim of disability beginning July 19, 2010. It noted that she had
resigned from the employing establishment on July 15, 2010 and the record was unclear as to
how her disability beginning July 19, 2010 was causally related to her accepted employment
condition. Clarification was requested and appellant was given 30 days to provide medical and
factual evidence.
On December 12, 2011 appellant filed a CA-7 form claiming wage-loss compensation for
the period July 24, 2010 to the present.
On January 17, 2012 appellant filed a CA-7 form claiming wage-loss compensation for
the period July 17, 2010 to January 30, 2012.
On February 10, 2012 OWCP received an April 14, 2011 report from Dr. Ta diagnosing
upper thoracic ribs subluxation, thoracic and cervical myofascial pain syndrome due to upper
thoracic ribs subluxation, cervical spine degenerative disc disease, and cervical disc syndrome,
which he attributed to appellant’s employment duties. Dr. Ta reiterated the findings contained in
his July 7, 2010 report and noted that appellant’s condition had gradually improved with the
chiropractic therapy he provided.
By letter dated February 13, 2012, OWCP informed appellant that the evidence of record
was insufficient to establish her claim for wage-loss compensation for the period July 17, 2010 to
January 30, 2012. It advised her that additional medical and factual evidence was required and
gave her 30 days to provide the requested information.
In a letter dated March 5, 2012, appellant explained that the reason she resigned from the
employing establishment was due to her increased symptoms and chronic pain. At the time of
her resignation she was working without restriction. Appellant further explained that she
resigned because she had exhausted all her sick and annual leave to cover her medical treatment
and she had no other option as her supervisor would not approve any request for leave without
pay. She also stated that she had verbally discussed with her supervisor regarding her chronic
pain and its impact and that she might not be able to continue performing her job duties.

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By letter dated April 26, 2012, OWCP requested additional information from the
employing establishment regarding appellant’s resignation on July 16, 2010.
In a May 2, 2012 letter, the employing establishment stated that the first time appellant’s
supervisor became aware of her medical condition was on July 15, 2010 when her claim was
given to the supervisor. Neither the supervisor nor command safety office stated that they had
been aware of appellant’s problems or symptoms or that it was employment related.
By decision dated August 28, 2012, OWCP denied appellant’s claim for disability on and
after July 15, 2010, causally related to the accepted employment injury.
Following the denial of her claim, OWCP continued to receive progress notes from
Dr. McClurg reiterating that appellant was capable of performing modified work.
In a September 17, 2012 note, Raul Estrada, a certified physician assistant, noted that
appellant was under the doctor’s care for her orthopedic problems. Appellant was placed on
work restrictions at the initial September 26, 2011 evaluation, which were not available at that
time.
In a September 25, 2012 letter, appellant’s counsel requested an oral hearing before an
OWCP hearing representative. A telephonic hearing was held on February 13, 2013.
In March 5, 2012 and February 8, 2013 medical treatment notes, Dr. McClurg indicated
that appellant was capable of returning to modified work.
By decision dated April 22, 2013, an OWCP hearing representative set aside the
August 28, 2012 decision and remanded for further development of the medical evidence.
Specifically, OWCP found that a supplemental report was required from Dr. Curran, an OWCP
referral physician. The hearing representative explained that while the claim was accepted based
on this report, Dr. Curran provided no rationale explaining why appellant was totally disabled
from working for the period July 16, 2010 to August 23, 2011 due to the accepted employment
injury.
OWCP continued to receive progress notes from Dr. McClurg following the April 22,
2013 OWCP hearing representative’s decision reiterating physical examination findings and that
appellant was capable of performing modified work.
On May 28, 2013 OWCP requested a supplemental report from Dr. Curran based on an
updated statement of accepted facts and requested an opinion as to whether appellant was totally
disabled from her job for the period July 25, 2010 to August 23, 2011 due to her accepted
employment conditions.
In May 31 and July 23, 2013 medical treatment notes, Dr. McClurg indicated that
appellant was capable of returning to modified work.
In a July 9, 2013 report, Dr. Lokesh S. Tantuwaya, an examining Board-certified
neurological surgeon, reviewed the medical evidence and performed a physical examination. He
diagnosed C5-6 cervical spondylosis with bilateral neural foramen compression. Appellant

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advised Dr. Tantuwaya that she resigned from the employing establishment on July 16, 2010 and
that she has been off work since then as her employer could not provide her with an
accommodation.
On July 26, 2013 OWCP received Dr. Curran’s June 26, 2013 supplemental report.
Dr. Curran diagnosed cervical sprain/strain due to appellant’s employment and multilevel
degenerative joint disc central and foraminal stenosis which had been permanently aggravated by
her employment. In response to OWCP’s request for clarification on appellant’s period of
disability, he opined that it was reasonable to conclude that appellant had a period of temporary
total disability for the period May 15 to July 15, 2010. Dr. Curran noted that appellant stopped
working on July 15, 2010 and that on September 26, 2011 Dr. McClurg concluded that she was
capable of working with restrictions. Appellant related that the employing establishment was
unable to provide her with a modified job based on her work restrictions. In concluding,
Dr. Curran opined that appellant was capable of working with restrictions.
By decision dated October 23, 2013, OWCP denied appellant’s claim for wage-loss
compensation on and after July 15, 2010 as the evidence failed to establish an employmentrelated disability. It found that there was no evidence supporting that work was unavailable in
keeping with her accommodations as reported by Drs. McClurg and Curran. Also, OWCP found
that appellant resigned prior to filing her claim, that she neither apprised the employing
establishment of a work stoppage due to an employment-related injury, nor submitted supporting
medical evidence of an employment-related work stoppage or a need for accommodations. It
further found that she provided no reason for her resignation and that the employing
establishment would have accommodated her work restrictions had she not resigned.
On November 19, 2013 appellant’s counsel requested an oral hearing before an OWCP
hearing representative. A telephonic hearing was held on May 9, 2014.3
In medical treatment notes dated November 1, 2013 and progress notes for the period
January 10 to March 7, 2014, Dr. McClurg indicated that appellant was capable of returning to
modified work.
In an April 23, 2014 report, Dr. William W. Winternitz, Jr., an examining Board-certified
orthopedic surgeon, reported that appellant sustained an injury on October 13, 2008 as the result
of doing a lot of computer work involving typing and using the mouse. Appellant described her
job duties and that she had not worked since July 15, 2010. Physical examination findings were
provided and Dr. Winternitz diagnosed cervical degenerative disc disease. Dr. Winternitz wrote
“no” to the question of whether there were work restrictions.
OWCP subsequently received progress notes from Dr. Winternitz for the period May 6 to
July 14, 2014, in which he provided physical findings and a review of diagnostic tests.
Diagnoses included right shoulder rotator cuff tendinitis and C6 right cervical radiculopathy and

3

On January 13, 2014 appellant filed a claim for a recurrence of disability (Form CA-2a) for the period
December 11, 2013 to January 13, 2014 due to the employing establishment’s inability to provide job restrictions
and for wage loss. This claim is not before the Board.

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subacrominal impingement. Dr. Winternitz indicated that appellant was capable of working with
restrictions and wrote “yes” to the question of whether there were work restrictions.
In a July 10, 2014 report, Dr. Choll W. Kim, an examining Board-certified orthopedic
surgeon, provided physical examination findings and diagnosed C5-6 disc herniation and right
shoulder rotator cuff tendinitis. He noted appellant’s employment history and that she had not
worked since July 15, 2010. With respect to her disability status Dr. Kim deferred to
Dr. Winternitz.
By decision dated August 6, 2014, an OWCP hearing representative affirmed the
October 23, 2013 decision denying appellant’s claim for an employment-related disability on or
after July 19, 2010.
In a letter dated August 18, 2014, appellant’s counsel requested reconsideration. He
argued that the medical evidence in the record was sufficient to establish appellant’s entitlement
to wage-loss compensation as medical reports clearly found that she was disabled from
performing her date-of-injury job.
Following the August 14, 2014 OWCP hearing representative’s decision, OWCP
received additional progress notes from Dr. Winternitz indicating that appellant was capable of
working with restrictions.
On September 9, 2014 OWCP received a July 9, 2014 functional capacity evaluation test
which stated that according to appellant’s description of her job that her physical capacities were
inconsistent with those duties.
In a September 16, 2014 report, Dr. Winternitz noted that appellant was injured on
October 13, 2008, provided a description of her job duties and noted that she has not worked
since July 16, 2010. He diagnosed left C5-6 cervical radiculopathy. Dr. Winternitz opined that
appellant was disabled from performing her date-of-injury position, but was capable of working
with restrictions. The restrictions included up to one hour of overhead work, up to five pounds
of lifting, pushing, and pulling on the right, and up to 10 pounds of lifting, pushing, and pulling
on the left.
By decision dated November 14, 2014, OWCP denied modification of the August 6, 2014
decision, finding that appellant had no employment-related disability on and after July 19, 2010,
the date she filed a Form CA-7 claiming wage-loss compensation.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, the employee has the burden of establishing that she was disabled for work as
4

5 U.S.C. §§ 8101-8193

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).

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a result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
Appellant claims that she is entitled to wage-loss compensation on and after
July 19, 2010. The record establishes that appellant resigned from the employing establishment
on July 16, 2010. No reason was given for the resignation. After the acceptance of her claim by
decision dated September 15, 2011 appellant filed several claims for wage-loss compensation on
and after July 19, 2010. The issue on appeal is whether appellant has established that her
disability for the period she claimed was due to her accepted employment injury.
OWCP accepted appellant’s claim based on Dr. Curran’s second opinion evaluation. On
April 22, 2013 an OWCP hearing representative set aside an August 28, 2012 decision denying
appellant’s wage-loss compensation claim. The hearing representative found that clarification
was needed from Dr. Curran regarding the period of appellant’s disability. In his June 26, 2013
supplemental report, Dr. Curran stated that it was reasonable to conclude that appellant had a
period of temporary total disability for the period May 15 to July 15, 2010. He noted that
appellant stopped working on July 15, 2010 and that on September 26, 2011 Dr. McClurg
concluded that she was capable of working with restrictions. Dr. Curran noted that according to
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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the employing establishment appellant was unable to provide her with a modified job based on
her work restrictions and that she was capable of working with restrictions. The Board notes,
however, that he failed to adequately address the question he was asked to address.12 OWCP
properly requested that Dr. Curran provide an opinion regarding appellant’s ability to work
during the period of disability he found in his original report.13 Dr. Curran, however, reported
that appellant could return to work without restrictions based on Dr. McClurg’s report that she
was probably disabled for the period May 15 to July 15, 2010, when she was working, but
Dr. Curran failed to address her disability status beginning on July 15, 2010. He did not explain
whether appellant’s inability to work beginning July 16, 2010, the date she resigned from the
employing establishment, was causally related to her accepted right shoulder joint pain and
cervical intervertebral disc degeneration.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.14 When it selects a
physician for an opinion on causal relationship, it has an obligation to secure, if necessary,
clarification of the physician’s report and to have a proper evaluation made.15
Dr. Curran failed to address appellant’s period of disability in his June 26, 2013 report.
OWCP was obligated to request clarification on whether appellant was disabled beginning
July 19, 2010 as a result of her accepted conditions. The case is remanded to OWCP for a
resolution of this issue. Following any further development, as is deemed necessary, it shall
issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant was
disabled from work for the period July 19, 2010 and continuing as a result of her accepted
employment conditions.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3 (July 2011).
13

As OWCP referred appellant to Dr. Curran, it had the responsibility to obtain an evaluation which will resolve
the issue involved in the case. See Mae Z. Hackett, 34 ECAB 1421 (1983).
14

Phillip L. Barnes, 55 ECAB 426, 441 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430,
433 (2002); William J. Cantrell, 34 ECAB 1233, 1237 (1993); Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).
15

Peter C. Belkind, 56 ECAB 580 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2014 is set aside and the case remanded for further
proceeding consistent with the above opinion.
Issued: October 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER,
Elk Grove Village, IL, Employer
_________________________________________

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

Docket No. 19-1054
Issued: November 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from October 16, 2018
and March 8, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 8, 2019 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a condition causally
related to the accepted July 30, 2018 employment incident.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 22-year-old mail handler, filed a traumatic injury
claim (Form CA-1), alleging that on July 30, 2018 he sustained a back and side injury while in the
performance of duty. He stopped work on August 6, 2018. On the reverse side of the claim form,
the employing establishment controverted the claim contending that appellant had not previously
reported the injury to management. Appellant submitted a statement in support of his claim.
On August 2, 2018 appellant was seen by Dr. Amy Kule, a Board-certified emergency
room physician, who diagnosed, inter alia, upper back strain. Dr. Kule indicated that appellant
was seen in the emergency room that day and was released to return to work without restrictions
on August 5, 2018.
In an August 8, 2018 note, Dr. Collette Williams, a physician specializing in internal
medicine, indicated that appellant was disabled from work for the period August 2 to 9, 2018 due
to a “back/side” employment injury.
In an August 8, 2018 note, Dr. Emily M. Teurk, a Board-certified internist, diagnosed side
pain and referred appellant for physical therapy.
In a development letter dated September 12, 2018, OWCP informed appellant of the
deficiencies in the evidence submitted. It advised him of the type of factual and medical evidence
needed to establish his claim and provided a questionnaire for his completion regarding the events
surrounding his injury. OWCP afforded appellant 30 days to submit the necessary evidence.
In a duty status report (Form CA-17) dated August 23, 2018, Dr. Matthew Crouch, a
resident/fellow physician, noted a diagnosis of left side pain due to a muscle sprain. He noted that
appellant’s injury occurred on August 3, 2018 when he was working on the dock. Appellant was
released to return to work on August 4, 2018. Dr. Crouch, in an attending physician’s report (Form
CA-20) dated August 23, 2018, diagnosed unspecified left-side abdominal pain and noted an injury
date of August 3, 2018. He opined that the diagnosed condition had likely been aggravated from
lifting a heavy object at work.
On September 27, 2018 appellant responded to questions posed in OWCP’s questionnaire.
He stated that he developed back pain from pushing a bulk mail center over-the-road container
while working on the south dock.
In a report dated September 27, 2018, Dr. Crouch noted that appellant was seen for a
follow-up for left-sided lower back pain on August 23, 2018. Appellant had previously been seen
on August 2 and 9, 2018 for left-sided lower back pain, which Dr. Crouch indicated began on
July 31, 2018 after appellant had lifted many heavy objects at work. A physical examination
revealed tenderness on palpation of lower back muscles. Dr. Crouch opined that appellant’s
symptoms appeared consistent with a musculoskeletal strain from lifting heavy objects at work.

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By decision dated October 16, 2018, OWCP denied appellant’s claim finding that he failed
to establish causal relationship. It found that the medical evidence of record failed to establish
how the diagnosed condition had been caused or aggravated by the accepted July 30, 2018
employment incident.
On December 11, 2018 appellant requested reconsideration of OWCP’s October 16, 2018
decision.
In a January 3, 2019 report, Dr. David Barnes, an osteopathic physician specializing in
family medicine, related that appellant had explained that on July 31, 2018 he felt a pop in his
lower back while pushing a container to load into a FedEx truck. He noted that appellant had been
diagnosed with a lumbar strain on August 8, 2018 by his treating physician. Dr. Barnes further
noted appellant’s physical examination findings and diagnosed lumbar sprain, sacroiliac sprain,
lumbar radiculopathy, and sacroiliitis. He opined that appellant would not have sustained a lower
back injury if he had not been working on July 31, 2018.
A January 21, 2019 magnetic resonance imaging (MRI) scan diagnosed mild L3-4 and L45 spinal canal stenosis. The report noted a history of a lower back injury due to lifting heavy
objects.
By decision dated March 8, 2019, OWCP denied modification of its October 16, 2018
decision.
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

H.A., Docket No. 18-1466 (issued August 23, 2019); 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

H.A., supra note 4; 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).

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allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.9
ANALYSIS
The Board finds appellant has not met his burden of proof to establish lumbar conditions
causally related to the accepted July 30, 2018 employment incident.
In support of his claim, appellant submitted an emergency room report dated August 2,
2018 from Dr. Kule. She diagnosed upper back strain, but did not offer an opinion as to the cause
of the diagnosed condition. 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.10 Thus,
Dr. Kule’s report is insufficient to establish appellant’s claim.
OWCP also received an August 8, 2018 note from Dr. Williams who noted that appellant
had sustained a back/side employment injury. As Dr. Williams did not provide a history of injury,
a firm diagnosis of a particular medical condition, or a rationalized opinion regarding causal
relationship, her report was of no probative value.11 Similarly OWCP received an August 8, 2018
note from Dr. Teurk, who noted a diagnosis of side pain. However, pain is a symptom rather than
a specific diagnosis.12 Dr. Teurk also did not relate a history of injury, diagnosis, or offer an
opinion regarding causal relationship, therefore, her report is also of no probative value.13
OWCP received Forms CA-17 and CA-20 dated August 23, 2018 and a September 27,
2017 report from Dr. Crouch. In the August 23, 2018 CA-17 and CA-20 forms, Dr. Crouch noted
an injury date of August 3, 2018 and diagnosis of left-sided pain due to muscle sprain. Dr. Crouch,
in his September 27, 2018 report, noted appellant’s lower back pain began on July 31, 2018 after
lifting heavy objects at work and he diagnosed musculoskeletal strain. It is well established that
medical reports must be based on a complete and accurate factual and medical background, and
that medical opinions based on an incomplete or inaccurate history are of limited probative value.14
7

J.C., Docket No. 18-1503 (issued May 2, 2019); 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

S.S., Docket No. 18-1488 (issued March 11, 2019).

10

J.C., supra note 7; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
11

See I.C., Docket No. 19-0804 (issued August 23, 2019).

12

G.S., Docket No. 19-0996 (issued September 23, 2019).

13

Supra note 11.

14

T.C., Docket No. 18-1351 (issued May 9, 2019); J.M., Docket No. 17-1002 (issued August 22, 2017); J.R.,
Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

4

Dr. Crouch did not attribute the diagnosed conditions to the accepted July 30, 2018 employment
incident, which appellant alleged occurred when he pushed a bulk mail container, but instead he
indicated a history of lifting heavy objects. As Dr. Crouch noted an incorrect date of injury and
an inaccurate history of injury, his reports were of no probative value.15
While Dr. Barnes noted a series of diagnoses and related that appellant had felt a pop in his
lower back while pushing a container, his report is also insufficient to establish appellant’s claim.
He noted an incorrect date of injury, July 31, 2018, and, while he opined that appellant would not
have sustained a low back injury if he had not been at work, his opinion regarding causal
relationship is conclusory.16 Dr. Barnes did not explain how pushing a bulk mail container on
July 30, 2018 would have physiologically caused the diagnosed conditions.17 His report is
therefore insufficient to establish appellant’s claim.
The January 21, 2019 MRI scan lacks probative value as it does not contain an opinion on
causal relationship between the accepted July 30, 2018 employment incident and a diagnosed
condition.18 The Board has held that reports of diagnostic tests lack probative value as they do not
provide an opinion on causal relationship between an accepted employment incident and a
diagnosed condition.19
As appellant has not submitted rationalized medical evidence, based upon a complete and
accurate history, to establish lumbar conditions causally related to the accepted July 30, 2018
employment incident, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted July 30, 2018 employment incident.

15

Supra note 11.

16

See S.H., Docket No. 19-0697 (issued September 4, 2019).

17

Id.

18

D.B., Docket No. 18-1359 (issued May 14, 2019); S.G., Docket No. 17-1054 (issued September 14, 2017).

19

T.H., Docket No. 18-1736 (issued March 13, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 and October 16, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 14, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, STOCKDALE
STATION, Bakersfield, CA, Employer
__________________________________________

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

Docket No. 08-2249
Issued: June 5, 2009

Case Submitted on the Record

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

JURISDICTION
On August 13, 2008 appellant filed a timely appeal from a June 25, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant had a recurrence of disability between April 25 and June 6,
2008 causally related to her accepted emotional condition.
FACTUAL HISTORY
On May 10, 2000 appellant, then a 42-year-old letter carrier, filed a claim for an
emotional condition. She alleged that on February 19, 2000 she was sexually assaulted by a
male stranger as she delivered her route. The assailant asked appellant for the time as she sat in
her delivery vehicle. As she turned to check her pager for the time, he stepped into the truck and
grabbed her right thigh and buttocks. Appellant pushed the assailant out of her delivery vehicle,
told him that she was calling the police and he left the scene. In an August 29, 2000 report,

Dr. S.A. Manohara, an attending Board-certified psychiatrist, stated that appellant was having
nightmares and he provided a history of the February 19, 2000 assault. He diagnosed posttraumatic stress disorder (PTSD). The Office accepted her claim for PTSD for the February 19,
2000 employment incident. Appellant received compensation for lost wages from March 2 to
July 6, 2000. She returned to regular work on July 12, 2000. Appellant continued to see
Dr. Manohara.
In 2008 appellant filed a claim for a recurrence of disability, for the period April 25 to
June 6, 2008, due to the February 19, 2000 injury.
By letter dated March 6, 2008, the Office asked Dr. Manohara to provide a detailed
narrative report with a rationalized explanation as to whether appellant had any residual
disability or medical condition causally related to the February 19, 2000 employment injury.
In form reports dated April 21 and 29, 2008, Dr. Manohara diagnosed PTSD and
indicated that appellant was disabled from April 16 to June 16, 2008. He checked the block
marked “yes,” indicating that appellant’s condition was causally related to the accepted claim.
On May 12, 2008 the Office asked appellant to provide additional evidence in support of
her recurrence of disability claim, including an explanation from Dr. Manohara as to why he
found her totally disabled beginning April 16, 2008 and how her disability in 2008 was causally
related to her accepted February 19, 2000 PTSD. It asked her for a statement describing the
employment factors that caused her disability in 2008. Appellant responded that a series of
incidents beginning on July 16, 2007 caused Dr. Manohara to place her off work on
April 16, 2008. She alleged that on July 16, 2007 Jas Brar, her supervisor, became angry at her
for calling in sick. Mr. Brar had a negative attitude toward her since that time whenever she was
sick or on work restrictions. Appellant described incidents of alleged harassment by Mr. Brar.
She alleged that harassment by Mr. Brar brought back memories of the February 19, 2000
assault. Appellant noted that her assailant in 2000 was never apprehended and she felt that
Mr. Brar could “attack” her and “get away with it too.”
In a May 29, 2008 report, Dr. Manohara stated that he saw appellant every two to four
weeks in 2008. Appellant was experiencing depression and anxiety due to problems at work,
primarily involving Mr. Brar. Dr. Manohara diagnosed PTSD and major depression which was
worsened by unspecified incidents between appellant and Mr. Brar. He stated that she was
totally disabled beginning April 25, 2008.
By decision dated June 25, 2008, the Office denied appellant’s claim for a recurrence of
disability on the grounds that the medical evidence failed to establish that her disability from
April 25 and June 6, 2008 was causally related to the February 19, 2000 employment-related
PTSD.1

1

Subsequent to the June 25, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

2

LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 An employee who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which he or she claims compensation is
causally related to the accepted injury. This burden of proof requires that an employee furnish
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to the employment
injury and supports that conclusion with sound reasoning.3 Where no such rationale is present,
medical evidence is of diminished probative value.4
ANALYSIS
Appellant has the burden to provide medical evidence establishing that she sustained a
recurrence of disability from April 25 to June 6, 2008 causally related to her accepted PTSD
sustained on February 19, 2000.
The Office asked appellant to explain the work factors that caused her disability in
April 2008. She alleged that harassment by Mr. Brar beginning in July 2007 regarding her use of
sick leave, her work restrictions and other unspecified matters brought back memories of the
February 19, 2000 assault. Appellant stated that her assailant was never apprehended and she
felt that Mr. Brar could “attack” her and “get away with it too.”
In form reports dated April 21 and 29, 2008, Dr. Manohara diagnosed PTSD and
indicated that appellant was disabled from April 16 to June 16, 2008. He checked the block
marked “yes,” indicating that appellant’s condition was causally related to the accepted
February 19, 2000 PTSD. The Board has held that a physician’s opinion on causal relationship
which consists only of checking “yes” to a form report is of diminished probative value on the
issue of causal relationship.5 These reports do not establish that appellant had a recurrence of
disability from April 25 to June 6, 2008 causally related to her accepted PTSD on
February 19, 2000. In a May 29, 2008 report, Dr. Manohara diagnosed PTSD and major
depression which was worsened by unspecified incidents between appellant and Mr. Brar. He
stated that she was totally disabled beginning April 25, 2008. Both appellant and Dr. Manohara
attributed her disability beginning April 25, 2008 to problems with her supervisor. Appellant
attempted to link her emotional condition and disability in 2008 to the February 19, 2000 assault
by asserting that incidents involving Mr. Brar brought back memories of the assault. She noted
that the assailant in 2000 was never caught and Mr. Brar was able to harass her at work and “get
2

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); see also Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

See Gary J. Watling, 52 ECAB 278, 280 (2001).

3

away with it.” However, Dr. Manohara did not provide any medical rationale supporting
appellant’s assertion of a causal relationship between the February 19, 2000 assault and accepted
PTSD and her problems with Mr. Brar in 2008. The evidence does not establish that appellant
had a recurrence of disability on April 25, 2008 which constituted a spontaneous return or
increase of disability due to the February 19, 2000 employment injury without intervening cause.
The evidence establishes that her allegations against Mr. Brar are an intervening cause of her
2008 disability. Appellant has failed to establish that she had a recurrence of disability between
April 25 and June 6, 2008 causally related to her February 19, 2000 employment-related PTSD.
Therefore, the Office properly denied her recurrence of disability claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
a recurrence of disability from April 25 to June 6, 2008 causally related to her February 19, 2000
accepted PTSD.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2008 is affirmed.
Issued: June 5, 2009
Washington, DC

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

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

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

4


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

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0461
Issued: April 14, 2016

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 12, 2016 appellant, through counsel, filed a timely appeal from a January 6,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
injury causally related to factors of her federal employment.
On appeal, counsel contends that a June 30, 2015 medical report from Dr. Benjamin A.
Goldberg, an attending Board-certified orthopedic surgeon, is sufficient to establish that
appellant’s right shoulder injuries were caused by repetitive lifting at work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on several occasions. In decisions dated
December 28, 2007,2 October 15, 2009,3 and August 10, 2011,4 the Board affirmed OWCP’s
denial of appellant’s occupational disease claim for a right shoulder injury and the denial of her
request for reconsideration without conducting a merit review. The Board found that she did not
submit sufficient medical evidence establishing a causal relationship between the accepted
employment factors and the claimed right shoulder injury. On June 22, 20155 the Board found
that the evidence submitted in support of appellant’s request for reconsideration did not meet any
of the three criteria for warranting a merit review of her claim pursuant to 20 C.F.R.
§ 10.606(b)(3). The facts and circumstances as set forth in the Board’s prior decisions are
incorporated herein by reference. The relevant facts are set forth below.
On August 29, 2006 appellant, then a 50-year-old casual clerk, filed an occupational
disease claim (Form CA-2) alleging that on July 20, 2005 she first became aware of her fullthickness tear of the supraspinatus tendon. She further alleged that on April 6, 2006 she first
realized that her condition was caused or aggravated by her employment.
By letter dated June 30, 2015 and received on July 1, 2015, following issuance of the
Board’s June 22, 2015 decision, appellant, through counsel, requested reconsideration of
OWCP’s July 1, 2014 decision denying her occupational disease claim for a right shoulder
injury.
In a June 30, 2015 report, Dr. Goldberg reviewed appellant’s medical records, statements
from her coworkers, and a document regarding dumping a hamper. Appellant described to
Dr. Goldberg her work duties which, included working side by side with regulars on a belt that
was loaded up with trays of mail, parcels, and books. She loaded and unloaded trays into
containers and threw some of them into hampers and worked on skids. Appellant related that
this could be very stressful because she used the same dominant arm 8 hours a day and
sometimes 12 hours during overtime. There was no time for warm-ups, cooldown, or rest.
Appellant came into work and swung into action throwing heavy bundles which could be very
irritating and painful. Her pain intensified while performing mandatory overtime work.
Appellant had neck and shoulder pain while loading and unloading 70-pound sacks filled with
books and heavy bundles of magazine wrappings. Her arms were in a forward flexion motion
after lifting 70-pound bags off a belt and carrying them to a cage and dumping them. Appellant
spent an entire eight-hour day doing this with two 15-minute breaks and one 30-minute lunch
break. She noted that a moving dolly weighing 400 pounds was filled up with 30 tubs weighing
35 pounds each and stacked up to the top. Appellant pulled, lifted, and pushed up to 1,100
pounds. She had to stop keying and turn, twist, and aim to throw off heavy bundles of books and
magazines due to a staff shortage. Appellant frequently performed overhead throwing, stacking,
2

Docket No. 07-1968 (issued December 28, 2007).

3

Docket No. 09-801 (issued October 15, 2009).

4

Docket No. 11-271 (issued August 10, 2011).

5

Docket No. 15-0748 (issued June 22, 2015).

2

and loading at six-foot cages while she was five feet four inches tall. Dr. Goldberg noted that
there was no dispute regarding OWCP’s acceptance of appellant’s work duties, which included
repeatedly lifting tubs weighing 35 pounds and mailbags weighing up to 70 pounds and pushing
and pulling dollies and cages weighing several hundred pounds.
Dr. Goldberg opined that appellant’s work activities, specifically repetitive lifting
between 35 and 70 pounds above her head, caused, accelerated, and precipitated her torn right
rotator cuff and torn labral and biceps tears that eventually required surgery. He explained that
performing repeated, forceful exertions across the front of the body increased the risk of injury to
her wrist, hand, shoulder, and upper back. Appellant’s torn tendons in her right arm were the
result of a wearing down of tendons caused by repetitive stress from repetitive lifting of bundles
of mail, books, and magazines, pushing heavy dollies and cages, and lifting heavy bags of mail
off conveyor belts. Repetitive lifting caused repetitive tearing of the tendons and muscles which
caused both to weaken to the point that her rotator cuff, biceps, and labral tendons tore.
Dr. Goldberg noted that heavy lifting stressed the muscles and tendons. As muscles contracted,
tendons were subjected to mechanical loading and viscoelastic deformation. With increased
tension, they became stiffer in response to loads. If the load on the tendons exceeded the tensile
limits of the tissue, permanent changes occurred, such as tears. If recovery time between
contractions was too short, tendon damage resulted along with permanent changes that decreased
the ultimate strength of the tendons. Dr. Goldberg found that repetitively lifting 35 to 70 pounds,
as appellant did, was sufficient to cause such small tears. He advised that these small tears
accumulated throughout her employment, decreasing the ultimate strength of her tendon which
led to more tearing as she performed heavy lifting activities on a daily basis. Dr. Goldberg
indicated that the existence of these tears was confirmed by a magnetic resonance imaging (MRI)
scan and his April 20, 2010 right shoulder arthroscopy and subacromial decompression
consisting of a subacromial bursectomy, biceps tenodesis, and rotator cuff tendon repair. During
surgery, a diagnostic arthroscopy confirmed the existence of a full-thickness rotator cuff tendon
tear and fraying of the entire long head of the biceps tendon within the range of the
tenosynovium and subacromial bursitis. Dr. Goldberg concluded that in young patients, a
degenerative etiology of the tear was less common than a traumatic etiology from overuse of
tendons, which was the most likely cause of appellant’s rotator cuff tears and biceps pathology.
In a December 22, 2015 decision, OWCP denied appellant’s June 30, 2015 request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
By letters dated December 28 and 29, 2015, appellant, through counsel, again requested
reconsideration. Counsel contended that appellant’s July 1, 2015 request for reconsideration of
OWCP’s July 1, 2014 decision was timely filed.
In a January 6, 2016 decision, OWCP denied modification of the July 1, 2014 decision.
It found that Dr. Goldberg’s June 30, 2015 opinion was speculative in nature and not rationalized
and based on a complete and accurate factual and medical history of injury. OWCP stated that
he did not explain how appellant’s right shoulder condition was due to the claimed employment
factors.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while 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.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
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 required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8 Neither the fact that appellant’s
condition became apparent during a period of employment nor, her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.9
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board has previously found that appellant did not meet her burden of proof to
establish a right shoulder injury causally related to her accepted employment factors. Appellant
requested reconsideration before OWCP and submitted a June 30, 2015 report from
Dr. Goldberg, a Board-certified orthopedic surgeon and her attending physician.
In his June 30, 2015 report, Dr. Goldberg noted that appellant described her work duties,
which included loading and unloading trays of mail, parcels, books, and bundles of magazine
wrappings weighing 70 pounds from a belt and dumping them into containers, hampers, and
cages, working on skids, and pulling, lifting, and pushing up to 1,100 pounds, and keying while
using her dominant arm 8 hours a day and 12 hours during overtime. Appellant stated that
6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

throwing heavy bundles was very irritating and painful, and loading and unloading 70-pound
sacks caused her neck and shoulder pain. She noted that she had two 15-minute breaks and one
30-minute lunch break. Dr. Goldberg opined that appellant’s torn right rotator cuff and torn
labral and biceps tears, which eventually required surgery, were caused, accelerated, and
precipitated by her accepted work duties, specifically, repetitive lifting between 35 and 70
pounds above her head. He further opined that a degenerative etiology of the tear was less
common than a traumatic etiology from overuse of tendons, which was the most likely cause of
her rotator cuff tears and biceps pathology. Dr. Goldberg explained that repetitive lifting caused
stress on muscles and tendons and made them stiffer in response to loads, resulting in tears. The
Board finds that this report, while not completely rationalized, is consistent in indicating that
appellant sustained an employment-related right shoulder condition.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.10 Although Dr. Goldberg’s report is not sufficiently rationalized to meet appellant’s
burden of proof to establish that she sustained a right shoulder injury causally related to the
established factors of her federal employment, his report is uncontroverted in the record and
raises an inference of causal relationship sufficient to require further development of the case
record by OWCP.11
The Board will remand the case to OWCP for referral to an appropriate medical specialist
to determine the extent of any injury or aggravation of any preexisting conditions as a result of
the established employment factors. Following this, and any other further development as
deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.
On appeal, counsel for appellant contends that Dr. Goldberg’s June 30, 2015 report is
sufficient to establish that appellant’s right shoulder injuries were caused by repetitive lifting at
work. However, the Board has found that the case is not in posture for decision. The case will
be remanded for further development.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

Lourdes Davila, 45 ECAB 139 (1993).

11

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for additional
development consistent with this decision of the Board.
Issued: April 14, 2016
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.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 12-548
Issued: November 16, 2012

Case Submitted on the Record

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

JURISDICTION
On January 20, 2012 appellant filed a timely appeal from an August 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury in the performance of duty on June 28, 2011.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 17, 2011
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On June 28, 2011 appellant, then a 58-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right knee injury on that same date when he was
walking up the stairs (three steps) to a residence and felt his right knee tighten up as he
approached the top step. He stated that when he went up to the next step his knee began to
tighten up even more. Appellant reported that the incident happened at 11:35 a.m. while
delivering mail and informed his supervisor at 11:40 a.m. on that same date. He first received
medical care on June 28, 2011. On the reverse of the claim form, appellant’s supervisor noted
that appellant’s injury occurred in the performance of duty, but also noted that it was not a jobrelated incident because “no debris or loose [particles] found in walking path, steps evenly in
height and alignment, all steps secured in place.”
By letter dated June 30, 2011, Jesse L. Flowers, a USPS investigator, reported that he
investigated the residence where appellant alleged to have injured himself at 11:45 a.m. on
June 28, 2011, immediately after the incident. He noted that appellant stated that his right knee
almost gave out as he got to the top of the stairs. Mr. Flowers stated that inspection of the area
showed three steps which were intact, aligned and secure, and that all bricks and stones were
cemented in place. He further stated that appellant’s shoes did meet USPS safety regulations.
By letter dated July 1, 2011, the employing establishment controverted the claim stating
that the investigation did not show any deterioration or obstruction on the steps on which
appellant allegedly injured himself.
On July 1, 2011 the employing establishment issued a Form CA-16 authorizing the North
Cross Medical Center to furnish appellant medical treatment for his right knee injury.
In two narrative statements dated July 28, 2011, appellant reported that, while delivering
mail, his right knee almost gave out on him as he reached the top of the stairs. He stated that his
foot slipped on a piece of slate that had broken loose from the top of the stairs which was part of
the slated rock from the stairs. Appellant reported that as he tried to go down the stairs his knee
felt like it wanted to give out again. As he tried to walk, his right knee became stiffer. Appellant
stated that Mr. Flowers found no problems with the stairs and porch. He reported, however, that
there were loose slates on the stairs and the top of the porch which had begun to chip away and
break in plates. Appellant stated that he had no prior injuries to his right knee.
By letter dated July 8, 2011, OWCP informed appellant that the evidence received was
insufficient to support his claim. It requested additional factual and medical evidence and asked
that he respond to the provided questions within 30 days.
In duty status reports (Form CA-17) dated June 28 to August 2, 2011, Dr. Mark T. Le,
Board-certified in internal medicine, reported that, on June 28, 2011, appellant walked up three
steps and felt his right leg tighten around the knee cap when he reached the top of the stairs. He
noted knee pain and weakness and diagnosed trauma to the knee. Dr. Le stated that the diagnosis
was due to the employment injury and restricted appellant from returning to work until August 3,
2011 under modified duty.

2

In an attending physician’s report, Dr. Le stated that appellant’s right knee hurt when
standing for too long and gave out from the June 28, 2011 injury. He noted weakness in the
meniscus and tendon and diagnosed torn meniscus. Dr. Le recommended a magnetic resonance
imaging (MRI) scan to confirm the diagnosis. He checked the box marked “yes” when asked if
the condition was caused or aggravated by the employment activity.
In a July 19, 2011 unsigned draft medical report from Northcross Medical Center, it was
noted that appellant hurt his knee and “remembered that when he stepped off the truck it hurts
more.” It was also reported that appellant “accounted for the fact that there were some steps that
were not well built and he had to put pressure and stress on it” and that he had this problem since
June 28, 2011. An MRI scan was recommended and a diagnosis of trauma to the knee and
ligament tear was noted.
By decision dated August 17, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged. It also noted that appellant failed
to establish a diagnosed medical condition causally related to the alleged employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability 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 on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6 Once an employee establishes
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.

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that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that appellant failed to establish that he sustained a right knee injury in
the performance of duty on June 28, 2011.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
his injury arose in the performance of duty. In its August 17, 2011 decision, OWCP found that
appellant did not establish that the incident occurred at the time, place and in the manner alleged.
The Board finds, however, that the evidence of record is sufficient to establish that appellant
experienced knee tightening as he climbed up and down stairs while delivering mail on
June 28, 2011.
Appellant alleged that he injured his right knee at work on June 28, 2011 when he was
walking up three steps and he felt his knee tighten as he approached and then as he reached the
top step. He has also explained that his knee tightened up again as he walked down the stairs.
7

Supra note 4.

8

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

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

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The duty status reports from Dr. Le are consistent in noting that appellant felt his knee tighten
after he walked up three steps. Further, appellant sought medical treatment and timely filed his
claim on the same date as the incident. The employing establishment controverted the claim and
sent Mr. Flowers to investigate the premises where appellant alleged to have injured himself.
Mr. Flowers stated that there were three steps which were intact, aligned and secure, and that all
of the bricks and stones were cemented in place. Appellant later submitted a July 28, 2011
narrative statement where he reported that his right knee almost gave out as he got to the top of
the steps because his foot slipped on a piece of slate that had broken loose. Despite this, his
subsequent statement that there was a loose piece of slate does not cast such inconsistencies as to
cast doubt that appellant did in fact climb the stairs while delivering mail. Though Mr. Flower’s
report states that the stones and bricks were secure with no obstructions on the steps, appellant
has consistently stated that his right knee gave out when he was climbing the steps. A loose
piece of slate could have been present at the time appellant climbed the steps, which was not
visable during the subsequent investigation. Whether there was an obstruction present or not,
this does not preclude the fact that appellant could have injured his right knee from the act of
climbing the stairs. The fact that appellant later mentioned stepping on a piece of loose slate
does not, by itself justify OWCP’s finding that the June 28, 2011 incident, namely that
appellant’s right knee gave out while walking up the stairs, did not occur as alleged.11
The Board notes that OWCP also based its fact of injury denial on an unsigned July 19,
2011 draft of a medical report. The draft report noted that appellant complained of knee pain and
“remembered that when he stepped off the truck it hurts more.” This statement is equivocal as it
can be read to mean that appellant felt pain stepping off a truck after the June 28, 2011
employment incident had already occurred. The draft goes on to state that appellant “accounted
for the fact that there were some steps that were not well built and he had to put pressure and
stress on it” and that he had this problem since June 28, 2011.
Given that appellant has established that he felt his knee give out while climbing up and
down stairs while delivering mail on June 28, 2011, the question becomes whether this incident
caused him an injury. In duty status reports and attending physician report forms dated June 28
to August 2, 2011, Dr. Le reported that on June 28, 2011, appellant walked up three steps and
felt his right leg tighten around the knee cap when he reached the top. He noted weakness in the
meniscus and tendon and diagnosed torn meniscus. Dr. Le recommended an MRI scan to
confirm his diagnosis and checked the box marked “yes” when asked if the condition was caused
or aggravated by the employment activity.
The Board finds that the opinion of Dr. Le is not well rationalized. Dr. Le did not
provide any detail regarding appellant’s medical condition. His diagnosis of torn meniscus is
speculative and has not been substantiated with diagnostic testing. Further, Dr. Le failed to
provide any examination findings regarding appellant’s right knee injury to establish a firm
medical diagnosis. Though he concluded, by check mark, that causal connection exists between
appellant’s condition and the June 28, 2011 employment incident, the medical forms provide no
support for that conclusion. Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.
11

See Willie J. Clements, 43 ECAB 244 (1991).

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Rationalized medical opinion evidence is medical evidence which provides a physician’s
medical explanation as to how the employment incident would have physiologically caused the
diagnosed condition. The opinion of the physician must be based on a complete factual and
medical background of the employee and must be one of reasonable medical certainty.12 The
Board has held that an opinion on causal relationship, which consists only of a physician
checking “yes” to a medical form report question on whether the claimant’s condition or
disability was related to the history, is of diminished probative value.13
Dr. Le’s medical notes do not constitute probative medical evidence because they fail to
provide a clear diagnosis and do not adequately explain, with medical rationale, the cause of
appellant’s injury.14
An award of compensation may not be based on surmise, conjecture or speculation.15 To
establish causal relationship, appellant must submit a physician’s report in which the physician
reviews those factors of employment alleged to have caused his condition and, taking these
factors into consideration, as well as findings upon examination and appellant’s medical history,
explain how these employment factors caused or aggravated any diagnosed condition, and
present medical rationale in support of his opinion.16 Where an appellant fails to submit such
medical evidence, he or she has not established that the injury occurred as alleged.17
In the instant case, the record is without rationalized medical evidence establishing a
causal relationship between the June 28, 2011 employment incident and appellant’s alleged right
knee injury. 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. §§ 10.606 and 10.607.
Although OWCP denied appellant’s claim of injury, it did not adjudicate the issue of
whether he should be reimbursed for incurred medical expenses. The employing establishment
authorized treatment with a CA-16 form on July 1, 2011. A properly executed CA-16 form
creates a contractual obligation, which does not involve the employee directly, to pay the cost of
the examination or treatment regardless of the action taken on the claim.18 OWCP did not
address this issue in its decision.

12

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

13

Lucrecia M. Nelson, 42 ECAB 583, 594 (1991).

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

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

16

See Robert Broome, 55 ECAB 339 (2004).

17

Tracey P. Spillane, 54 ECAB 608 (2003); 5 U.S.C. § 8101(5).

18

See M.M., Docket No. 11-1544 (issued March 12, 2012); Elaine M. Kreymborg, 41 ECAB 256 (1989).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a right knee injury causally related to the accepted June 28, 2011 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: November 16, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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