United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

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physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation 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

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. 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. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met 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 has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

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

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0659
Issued: September 21, 2017

Case Submitted on the Record

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

JURISDICTION
On February 1, 2017 appellant, through counsel, filed a timely appeal from an August 9,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established a traumatic injury causally related to the
accepted December 5, 2015 employment incident.
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.

On appeal counsel contends that the medical evidence of record establishes that on
December 5, 2015 appellant suffered an aggravation of a preexisting injury to his back.3 He
further contends that, at the very least, the medical evidence of record was sufficient to require
further development of the record.
FACTUAL HISTORY
On December 5, 2015 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he experienced low back and leg pain while lifting
a bucket of mail weighing 25 to 30 pounds out of a relay box. He stopped work on
December 5, 2015.
The employing establishment controverted appellant’s claim alleging that he had an
ongoing back condition for the past four years and that he had been out on sick leave from
September 14 through October 13, 2015 due to back pain.
By letter dated December 23, 2015, OWCP informed appellant that further factual and
medical evidence was needed to support his claim. Appellant was afforded 30 days to submit
this evidence.
In progress notes detailing appellant’s visit to urgent care on December 5, 2015,
Dr. Jonathan Weinstein, a Board-certified cardiologist, indicated that appellant complained of
onset of back pain two hours earlier and had occurred when he was lifting a 30-pound mailbag.
He also noted that appellant had experienced low back pain for the past five years.
Dr. Weinstein diagnosed low back pain.
In a December 16, 2015 report Dr. Ira Owen, a physician specializing in emergency
medicine, noted that appellant presented with back pain, onset one to two weeks ago. He related
that this encounter was related to a workers’ compensation claim. Dr. Owen diagnosed
radiculopathy, lumbago, and muscle spasm of the back.
In a January 6, 2016 report, Dr. Jason Fritzhand, an osteopath specializing in physical
medicine and rehabilitation, noted that appellant had back pain for the past five years. He
reported that on December 5, 2015 appellant was lifting heavy mail at work and developed sharp
pain on both sides of his lower back which radiated to his bilateral thighs. Dr. Fritzhand
diagnosed chronic lower back pain with new onset of lumbar radiculitis. He also noted likely
herniated nucleus pulposus. Dr. Fritzhand recommended diagnostic studies and that appellant
remain out of work.
By decision dated January 28, 2016, OWCP denied appellant’s claim finding the
evidence of record was insufficient to establish that the incident occurred as alleged. It also
found that appellant had not submitted any medical evidence to establish a diagnosed medical
condition causally related to the alleged employment incident.

3

Appellant’s prior claim for an employment-related October 5, 2009 injury was accepted for subluxation of the
lumbar spine and was assigned File No. xxxxxx627.

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An x-ray of the lumbar spine taken on January 26, 2016 was interpreted by Dr. Renata La
Rocca Vieira, a radiologist, as showing no listhesis or instability. She also noted mild multilevel
discogenic degenerative disease, most pronounced at L4-5. Dr. Vieira noted no evidence of
acute fracture.
In a January 26, 2016 report, Dr. Fritzhand, noted that the x-ray of the lumbar spine
performed that date revealed no sign of spondylolisthesis. He did note mild disc space
narrowing and degenerative changes at L4-5. Dr. Fritzhand diagnosed chronic low back pain
with new onset of lumbar radiculitis and likely herniated disc.
On February 17, 2016 appellant requested an oral hearing before a hearing representative
with OWCP’s Branch of Hearings and Review.
A February 4, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine was
interpreted by Dr. Vidya Malhotra, a Board-certified radiologist, as showing mild levocurvature
of the lumbar spine, mild disc desiccation at L4-5 and L5-S1, minimal grade 1 retrolisthesis seen
at the L4-5 level, posterior bulging disc at L5-S1, L4-5, and L3-4, and left paramedian disc
herniation with small extruded disc fragment at T12-L1.
In a March 8, 2016 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist, noted
that on December 5, 2015 appellant reached down and forward to reach for a bucket full of mail
weighing somewhere between 20 to 40 pounds and that, when he was lifting the bucket out of a
box, he noted an intense pain in his lower back, more on the left than on the right, with
immediate radiation into the anterolateral aspect of the left thigh. He noted a prior injury to
appellant’s back. Dr. Filippone diagnosed exacerbation of prior injury to the low back with
polyradiculopathy based on the neurologic physical examination. He explained that the
presentation implicated the T12-L1 nerve roots on the left side verified by a left paramedian disc
herniation with small extruded disc fragments seen at the T12-L1 level compressing thecal sac
on the left side. Dr. Filippone noted that further diagnostic studies were needed. He opined that
appellant remained totally disabled as the result of injuries he sustained while working for the
employing establishment.
At the hearing held on May 26, 2016, appellant testified that he had worked for the
employing establishment since June 1996 as a letter carrier. He noted that he had sustained a
prior injury on October 5, 2009 while loading his bag, but that this injury was the first time he
ever had a back issue. Appellant noted that he was able to return to work after that injury. He
indicated that he did have flare-ups of back pain for which he had to take leave. Appellant noted
that on December 5, 2015 he felt a sharp pain when he lifted a bucket full of mail. He described
his medical treatment and indicated that the delay in treatment and x-rays was because he had not
been approved for workers compensation. Appellant noted that he has not returned to work since
the alleged December 5, 2015 injury. Counsel argued that appellant’s credible testimony as to
how the incident occurred should be accepted. He also asserted that it was unfair to find that
appellant had delayed seeking treatment, noting he was examined by Dr. Weinstein on
December 5, 2015 and Dr. Owen on December 16, 2015. Counsel also argued that Dr. Fritzhand
did identify a firm diagnosis. He requested that the record be held open for 30 days to submit
further information on causal relationship. No further evidence was received by OWCP.

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By decision dated August 9, 2016, the hearing representative modified OWCP’s prior
decision. He found that appellant had established that the employment incident of December 5,
2015 occurred as alleged, but that the medical evidence of record failed to establish that the
accepted incident caused a personal injury.
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, that an injury was caused 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.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the employee.8 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
In the decision dated August 9, 2016, OWCP’s hearing representative determined that the
employment incident of December 5, 2015 occurred as alleged. However, he denied appellant’s
claim, finding that appellant failed to meet his burden of proof to establish a personal injury
causally related to the accepted employment incident.
4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

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

7

Id.

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

James Mack, 43 ECAB 321 (1991).

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Dr. Weinstein examined appellant on December 5, 2015, the date of the employment
accepted incident. However, Dr. Weinstein did not diagnose a medical condition related to the
incident. Rather, he merely diagnosed lower back pain. However, pain is not a medical
diagnosis and subjective complaints of pain are insufficient, in and of themselves, to support a
claim for benefits under FECA.10
Dr. Owen briefly noted that appellant returned for a workers’ compensation follow-up on
December 16, 2015. He did not, however, provide a medical opinion linking appellant’s medical
condition to the December 5, 2015 employment incident. 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.11
Dr. Fritzhand briefly noted appellant’s December 5, 2015 employment incident, but
failed to provide a rationalized opinion on causal relationship. The opinion of the physician must
be based on a complete factual and medical background of the employee, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment incident.12 The report of Dr. Fritzhand is therefore of limited
probative value on the issue of causal relationship.
Drs. Malhotra and Vieira interpreted diagnostic studies but reached no conclusion on
causal relationship. Thus, their opinions are therefore of limited probative value.13
Dr. Filippone’s opinion also does not constitute rationalized medical evidence supporting
causal relationship. He diagnosed exacerbation of the prior injury in the low back with
polyradiculopathy.
Dr. Filippone also discussed appellant’s employment incident of
December 5, 2015. He concluded that appellant’s injuries were sustained while working for the
employing establishment, and that he was totally disabled. Dr. Filippone did not, however,
clearly explain how the December 5, 2015 incident caused or aggravated appellant’s medical
condition. He did not explain how the mechanism of incident would have physiologically
caused the diagnosed condition.14 The Board has long held that a mere conclusion, without the
necessary rationale explaining how and why the physician believes that appellant’s accepted
employment incident resulted in a diagnosed condition, is insufficient to meet appellant’s burden
of proof.15
An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship.16 The Board finds that appellant has failed to submit
10

C.W., Docket No. 15-0667 (issued July 22, 2015).

11

E.R., Docket No. 16-1634 (issued May 25, 2017).

12

J.S., Docket No. 16-1769 (issued May 24, 2017).

13

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

14

See R.R., Docket No. 16-1901 (issued April 17, 2017).

15

Supra note 13.

16

John D. Jackson, 55 ECAB 465 (2004); William Nimitz¸30 ECAB 57 (1979).

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rationalized medical evidence to meet his burden of proof on causal relationship to establish his
claim for disability.
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 established a traumatic injury causally related to
the accepted December 5, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2016 is affirmed.
Issued: September 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brockton, MA, Employer
__________________________________________

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Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1861
Issued: April 5, 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 September 10, 2019 appellant, through counsel, filed a timely appeal from a March 26,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from the last merit decision, dated February 7, 2018, to the filing of this

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

Appellant timely requested oral argument before the Board. By order dated July 22, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 19-1861 (issued July 22, 2020).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 25, 2016 appellant, then a 62-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he had developed bilateral hip and knee osteoarthritis due
to factors of his federal employment. He noted that he first became aware of his condition and its
relationship to his federal employment on September 30, 2016. Appellant did not stop work. On
the reverse side of the claim form, a supervisor for the employing establishment indicated that he
never claimed a work-related injury, but instead indicated that he would be retiring because “his
body was giving out.”
In a narrative statement dated September 29, 2016, appellant asserted that his knees and
hips had been painful since the 1980’s. He noted that he had worked as a letter carrier since
May 1985. Appellant alleged that his position required 500 stops per day and for him to walk five
miles per day, as well as delivering packages weighing up to 70 pounds. He noted that he was
required to walk over uneven, hilly, slippery, and icy terrain and stand on concrete. Appellant
listed his work duties as repetitive bending, stooping, twisting, kneeling, and turning motions. He
provided calculations of the number of steps taken, miles walked, time spent standing, and exits
from his vehicle. Appellant further noted that he underwent left knee surgery in 2012.
In an April 26, 1999 note, Dr. Eric E. Johnson, a Board-certified internist and cardiologist,
recommended that appellant not increase his work activities due to shoulder, back, and leg
problems. On May 5, 2008 he noted that appellant was requesting a reasonable accommodation
due to work-related shoulder and back conditions and recommended that appellant continue his
mounted/dismounted route.
On August 18, 2008 appellant requested continuance of his reasonable accommodations
including a combination of a mounted and dismounted route, which was established following a
work-related back and shoulder injury. On October 20, 2008 the employing establishment noted
that appellant had used reasonable accommodations for at least 10 years.
Appellant provided a series of notes from Dr. Ralph Scott Oliver, an orthopedic surgeon.
In a February 16, 2012 note, Dr. Oliver recounted that appellant was experiencing ongoing knee
3

5 U.S.C. § 8101 et seq.

4

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

2

pain. He noted that appellant had difficulty standing from a squatting position and pain on stairs.
On April 19, 2012 Dr. Oliver reported that appellant exhibited significant patellofemoral crepitus
of both knees. He diagnosed osteoarthritis bilateral knees. In his May 1, 2012 note, Dr. Oliver
diagnosed internal derangement and osteoarthritis of the left knee. On May 11, 2012 appellant
underwent a left knee magnetic resonance imaging (MRI) scan which demonstrated tears of the
medial meniscus, ligament strains, and early patellofemoral degenerative arthritis. On July 19,
2012 Dr. Oliver diagnosed internal derangement of the left knee and indicated that a knee
arthroscopy was planned. Appellant underwent left knee arthroscopy on July 30, 2012. On
December 7, 2012 Dr. Oliver opined that appellant’s left knee condition was not employment
related as appellant had no specific knee injury.
On February 18, 2014 Dr. Oliver examined appellant due to progressive bilateral knee
discomfort and diagnosed bilateral knee osteoarthritis. In a note dated September 4, 2014, he
examined appellant due to appellant’s difficulties walking and diagnosed bilateral knee
osteoarthritis. In subsequent notes dated January 6 through November 6, 2015, Dr. Oliver
continued to treat appellant for bilateral knee and hip pain. He diagnosed right and left sciatic and
repeated his diagnosis of bilateral knee osteoarthritis. On June 18, 2015 Dr. Oliver recommended
knee replacement surgery.
Appellant also provided a series of notes from January 6, 2012 through December 8, 2015
from Jennifer M. Burke, a nurse practitioner.
On January 15, 2016 Dr. Brett Teran, an osteopath and a Board-certified physiatrist,
examined appellant due to low back and bilateral leg pain. He reviewed appellant’s lumbar spine
MRI scan and found mild degenerative disc and facet disease, but no evidence of nerve
compression or disc herniation. Dr. Teran noted that appellant’s bilateral knee x-rays
demonstrated joint space narrowing of the medial and patellofemoral compartment in both knees.
He diagnosed bilateral knee pain.
In a report dated November 17, 2016, Dr. Byron V. Hartunian, an orthopedic surgeon,
noted that he had examined appellant due to hip and knee arthritis. He described appellant’s work
duties of walking five to six miles a day while carrying a 35-pound mail satchel. Dr. Hartunian
reported that, when appellant performed a park and loop route, appellant exited his truck 350 times
a day. He noted that appellant had to lift up to 70 pounds and was required to perform repetitive
stooping, bending, lifting, twisting, squatting, climbing, and reaching activities. Dr. Hartunian
performed a physical examination and diagnosed bilateral arthritis of the hips, and knees. He
explained that arthritis was a failure and loss of articular cartilage surface due to impact loading
resulting from repeated local stresses that cause and accelerate the progression of arthritis through
chronic inflammation. Dr. Hartunian opined that appellant’s job duties, such as descending stairs,
were impact loading activities which exerted repeated local stresses to appellant’s lower
extremities. He described the biological and chemical process by which excessive impact loading
and repeated local stresses caused mechanical stress on the cartilage surface resulting in chronic
inflammation which in turn resulted in an accelerated loss of articular cartilage in the affected areas
of the lower extremities. Dr. Hartunian noted that the chemical change in the cartilage was the
loss of proteoglycans through degradative enzymes activated by inflammation. He further
explained that proteoglycans were responsible for cartilage resilience. Dr. Hartunian found that it
was universally accepted in the scientific and medical communities that impact loading and

3

repetitive motion contributed to the development and progression of lower extremity arthritis. He
also found that appellant’s work duties contributed, aggravated and accelerated his significant
cartilage loss in the knees and hips. Dr. Hartunian concluded that this aggravation was permanent.
On January 7, 2017 appellant’s supervisor, D.D., noted that appellant had requested
accommodations in 2008 due to arm and neck pain. He reported that appellant’s physician limited
appellant to working eight hours a day six days a week. D.D. indicated that appellant had a route
of all single family homes that were close to the street and that his assertion that he walked 20
steps per stop was an exaggeration. He noted that appellant’s route was adjusted in August 2014,
in which appellant currently had 453 stops, but prior to that he was delivering less stops.
In an April 17, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to respond.
On May 4, 2017 counsel responded and asserted that appellant had provided a detailed
narrative statement and a comprehensive report from Dr. Hartunian. He contended that appellant
had provided sufficient documentation for the acceptance of appellant’s occupational disease
claim.
In a May 3, 2017 response to OWCP’s development questionnaire, appellant asserted that
he worked six days a week for most of his career at the employing establishment. He alleged that
beginning in 2008 he worked only eight hours a day. Appellant noted that his reasonable
accommodations began in 2008 and continued until he retired and that these accommodations were
partially related to his hips and knees as he could not walk long distances, but were also due to
difficulties lifting.
By decision dated July 6, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between the diagnosed medical
conditions and the accepted factors of his federal employment.
On July 11, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a November 2, 2017 report, Dr. Hartunian again opined that appellant’s duties as a letter
carrier contributed to his bilateral hip and knee arthritis. He noted that appellant was not
performing his full duties following his July 30, 2012 knee surgery and that he had
accommodations including a mount/dismount route. Dr. Hartunian reported that, even assuming
that appellant was performing light-duty beginning in 2008, at that time appellant had worked for
23 years with impact loading activities which would be more than enough to contribute to his
bilateral hip and knee osteoarthritis. He found that appellant’s conditions were aggravated by the
accumulative stresses as a result of the performance of appellant’s work responsibilities.
During the hearing, held on November 28, 2017, counsel contended that Dr. Hartunian’s
reports were sufficient to meet appellant’s burden of proof to establish his occupational disease
claim.

4

OWCP subsequently received additional evidence. On December 18, 2017 appellant
responded to D.D.’s remarks and noted that he began his career at the employing establishment in
1985 and that D.D. became his supervisor in December 2007. He agreed that in 2008 he began
working only eight hours a day six days a week. Appellant alleged that prior to 2008 he worked
longer hours and longer routes. He contended that over the course of his career his delivery routes
averaged approximately 500 stops per day and required him to walk five miles a day. Appellant
also again asserted that each stop averaged 20 steps round trip.
In a report dated August 27, 2015, Dr. Justin W. Kung, a Board-certified diagnostic
radiologist, reviewed appellant’s bilateral knee and hip x-rays and found severe degenerative
changes on the right patellofemoral compartment, moderate degenerative changes in the left
medial compartment, and mild-to-moderate degenerative changes of both femoroacetabular joints.
On March 2, 2017 Dr. Teran recounted that appellant was experiencing chronic bilateral
knee pain and low back pain. He also noted that appellant reported weakness in his hips and thighs.
Dr. Teran diagnosed bilateral primary osteoarthritis of the knees and low back pain.
By decision dated February 7, 2018, OWCP’s hearing representative affirmed the July 6,
2017 decision, finding that the medical evidence was insufficient to establish causal relationship
between appellant’s bilateral knee and hip osteoarthritis and his employment duties.
On January 30, 2019 appellant, through counsel, requested reconsideration of the
February 7, 2018 decision. He submitted a January 29, 2019 memorandum and addendum which
contended that Dr. Hartunian’s November 17, 2016 and November 2, 2017 reports were sufficient
to require further development of the medical evidence and that OWCP’s hearing representative
erred in not directing such further development as appellant had established a prima facie case.
Counsel further contended that OWCP’s hearing representative’s decision was based on factual
inaccuracy as there was no evidence that appellant did not engage in impact loading activities from
2012 through 2014.
Appellant provided an additional narrative statement dated October 26, 2018 and asserted
that, while he may have overestimated the number of stops on his route, he still went up and down
millions of stairs, steps, and curbs during his 32 years as a letter carrier. Appellant also submitted
a copy of his position description as a city carrier, which included a description of a dismount route
on which 50 percent or more of the possible deliveries are made by dismount delivery to the door.
By decision dated March 26, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5

5

5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).

5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration of OWCP’s February 7, 2018 decision
on January 30, 2019.10 The Board finds, however, that he did not establish that OWCP erroneously
applied or interpreted a specific point of law, or advance a relevant legal argument not previously
considered by OWCP. While counsel contended that Dr. Hartunian’s reports were sufficient to
meet appellant’s burden of proof or to require further development on the part of OWCP, these
arguments were previously raised and considered by OWCP in its prior decisions. Evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.11 With regard to counsel’s contention that
OWCP’s hearing representative based her decision on an incorrect assessment of the facts, this
contention does not show a legal error by OWCP or a new and relevant legal argument. For these
reasons, the Board finds that counsel’s assertions are insufficient to warrant reopening appellant’s
claim for further review of the merits based on either the first or second requirement under 20
C.F.R. § 10.606(b)(3).

6

20 C.F.R. § 10.606(b)(3); L.D., id.

7
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

Supra note 7.

11

B.O., Docket No. 20-0156 (issued May 13, 2020); D.K., 59 ECAB 141 (2007).

6

Appellant also failed to submit relevant and pertinent new evidence in support of his
January 30, 2019 request for reconsideration. The underlying issue is whether he submitted
sufficient evidence to establish a causal relationship between the accepted employment factors and
his diagnosed medical conditions. This is a medical question that requires rationalized medical
opinion evidence to resolve the issue.12 However, appellant did not submit any additional medical
evidence with his request for reconsideration. Because he did not provide any relevant and
pertinent new evidence, he is also not entitled to a review of the merits based on the third
requirement under 20 C.F.R. § 10.606(b)(3).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 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

12

S.H., Docket No. 19-1578 (issued August 12, 2020).

7


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

)
)
)
)
)
)
)
)

Appearances:
Jessica Rogers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0719
Issued: November 9, 2018

Case Submitted on the Record

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

JURISDICTION
On February 16, 2018 appellant, through counsel, filed a timely appeal from a
September 8, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing October 5, 2013 causally related to her accepted brachial, thoracic, and
lumbosacral neuritis/radiculitis conditions.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On August 20, 2013 appellant, then a 51-year-old mail processing clerk in light-duty status,
filed an occupational disease claim (Form CA-2) alleging that sometime before October 1, 2010
she sustained conditions of her neck, both arms, both wrists, both hands, and back due to repetitive
reaching, pulling, bending, and lifting while in the performance of her federal employment. She
did not stop work. On September 27, 2013 OWCP accepted the claim for brachial, thoracic, and
lumbosacral neuritis or radiculitis. Appellant stopped work on October 6, 2013.
Appellant filed claims for compensation (Form CA-7) for wage loss commencing
October 5, 2013.
In a report dated September 23, 2013, Dr. Nasser Ani, an attending Board-certified
orthopedic surgeon, related that he restricted appellant to light-duty work, with lifting limited to
15 pounds and driving restricted to 20 minutes at a time. He opined that repetitive upper extremity
motions at work caused C4-5, C5-6, C6-7, and L3-4 disc herniations, brachial neuritis, thoracic
and lumbosacral radiculitis, and bilateral carpal tunnel syndrome. On January 15, 2014 Dr. Ani
released appellant to work with restrictions of working no more than four hours a day, with no
pulling, twisting, bending, repetitive lifting, sitting from a standing position, standing and walking
for unspecified periods, climbing stairs, or driving for more than 20 minutes at a time.
By decision dated February 27, 2014, OWCP denied appellant’s claim for ongoing wageloss compensation commencing October 5, 2013, as the medical evidence of record was
insufficient to support total disability for the claimed period.4
On April 21, 2014 appellant submitted a November 26, 2013 notice of recurrence (Form
CA-2a) claiming ongoing total disability commencing October 6, 2013. She contended that the
employing establishment informed her that no work was available within Dr. Ani’s restrictions.
Appellant submitted notes from Dr. Ani dated from April 16 to June 12, 2014, finding her neck,
spine, and bilateral carpal tunnel syndrome symptoms unchanged. Dr. Ani released her to limitedduty work for four hours a day. By decision dated July 17, 2014, OWCP denied appellant’s

3

Docket No. 15-1582 (issued November 9, 2015).

4

On March 6, 2014 appellant, through counsel, requested a review of the written record by OWCP’s Branch of
Hearings and Review. By decision dated July 9, 2014, OWCP’s Branch of Hearings and Review affirmed the
February 27, 2014 denial of appellant’s claim for compensation.

2

recurrence claim, finding that the medical evidence of record was insufficient to establish that she
was totally disabled from work commencing October 6, 2013 due to the accepted conditions.
Appellant subsequently requested an oral hearing. Following a hearing held on
December 5, 2014, she submitted notes from Dr. Ani dated from July 23, 2013 to November 6,
2014, finding her condition unchanged. Dr. Ani released appellant to modified-duty work on
November 6, 2014 within her previous restrictions.
By decision dated February 26, 2015, an OWCP hearing representative affirmed the
July 17, 2014 decision, finding that the medical evidence of record was insufficient to establish
the claimed recurrence of disability. Also, appellant had not submitted sufficient evidence to
establish that she had no other means of commuting to and from work.
On July 15, 2015 appellant, through counsel, appealed to the Board.5
By decision dated November 9, 2015, the Board affirmed OWCP’s February 26, 2015
decision, finding that appellant had not established a worsening of the accepted conditions, or that
her light-duty position had been withdrawn.
On November 25, 2015 appellant, through counsel, requested reconsideration with OWCP.
She contended that the employing establishment had withdrawn appellant’s light-duty position as
there were no jobs available, within her restrictions, located within a 20-minute drive of her
residence.
In support of appellant’s request, counsel submitted September 29 and October 30, 2014
letters from the employing establishment notifying appellant and her elected representative that
there was no vacancy “in any bargaining unit craft within a 20-minute drive of [appellant’s]
residence” where she could perform “the essential functions of the position with or without an
accommodation.” She also provided chart notes from Dr. Ani dated October 28 and November 25,
2015, finding appellant’s condition unchanged.
By decision dated December 8, 2015, OWCP denied reconsideration of the merits of her
claim as the evidence submitted was irrelevant, immaterial, or repetitious.
On June 15, 2016 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In notes dated from January 4 to August 8, 2016, Dr. Ani continued to note upper and lower
back pain, and pain and paresthesias in both wrists and hands. He administered epidural
injections.6

5

During the pendency of the prior appeal, appellant submitted additional chart notes from Dr. Ani dated through
September 23, 2015. Dr. Ani found her conditions unchanged and recommended bilateral carpal tunnel releases.
6

Appellant also provided physical therapy notes dated from April through June 2016. A May 14, 2016 lumbar
magnetic resonance imaging (MRI) scan showed a tiny annular tear at L1-2, L3-4 disc herniation, and bilateral facet
osteoarthritis at L4-5 and L5-S1 slightly progressed from an August 16, 2013 study.

3

In a report dated May 23, 2016, Dr. Ani explained that his September 23, 2013 work
restrictions were “medically necessary due to worsening of her work-related injury which she
sustained at work on October 1, 2010.” He opined that appellant’s neck, back, and bilateral wrist
conditions were caused by repetitive activities at work.
By decision dated September 8, 2016, OWCP denied modification of its December 8, 2015
decision, finding that the additional medical evidence submitted was insufficient to establish a
spontaneous worsening of the accepted conditions or withdrawal of her light-duty position. It
noted that appellant had filed a separate claim under OWCP File No. xxxxxx418 for hand and
wrist conditions, including carpal tunnel syndrome, and that she should pursue her appeal rights
under that claim.
On June 12, 2017 appellant, through counsel, requested reconsideration, contending that
new medical evidence from Dr. Ani established that the increased work restrictions he prescribed
in September 2013 were necessitated by a worsening of the accepted conditions.
Dr. Ani provided notes dated September 8, 2016 onward noting continued thoracic and
lumbar spine pain, and bilateral hand and wrist pain.
In an April 20, 2017 report, Dr. Ani opined that prolonged standing, walking, and repetitive
upper extremity motions caused appellant’s accepted brachial, thoracic, and lumbosacral neuritis
or radiculitis, and bilateral carpal tunnel syndrome. He indicated that commencing October 1,
2010, appellant’s bilateral hand and wrist pain, neck pain, and lumbar pain with radiculopathy had
worsened. Dr. Ani explained that “decreasing her driving time was medically necessary to
decrease the compression of the spine.” He opined that, due to appellant’s “accepted conditions
of brachial neuritis/radiculitis and lumbosacral neuritis/radiculitis, [appellant] has been unable to
drive more than 20 minutes at a time since September 23, 2013 and remains unable to do so.”
Dr. Ani explained that driving for longer than 20 minutes would “put additional and significant
pressure on the already weakened and damaged discs in her cervical and lumbar spine,” causing
increased disc protrusion, “leading to additional compression or impingement of the surrounding
nerves and increased radiculopathy and loss of function for this patient.” He found appellant able
to perform light-duty work for four hours a day, with driving to and from work or at work to less
than one hour.
In a June 2, 2017 statement, appellant contended that, on September 23, 2013, she had
provided the employing establishment with Dr. Ani’s updated work limitations, which restricted
her to driving no more than 20 minutes continuously. She explained that she had notified the
employing establishment on October 6, 2013 that OWCP had accepted her claim. The employing
establishment then advised appellant that it no longer had light-duty work available within her
restrictions.
An August 19, 2017 lumbar MRI scan showed moderate left and minimal right foramina
stenosis at L3-4, and minimal disc bulges at L4-5 and L5-S1. The remainder of the examination
was unchanged.
Appellant also submitted copies of evidence previously of record.

4

By decision dated September 8, 2017, OWCP denied modification of its September 8, 2016
decision. It found that the additional medical evidence submitted was insufficient to establish that
appellant’s claimed disability commencing October 6, 2013 was a result of an objective worsening
of her condition without intervening case. OWCP further found that the factual evidence of record
was insufficient to establish that the employing establishment changed or withdrew appellant’s
light-duty job on October 6, 2013.
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 had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.7 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.8
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that, light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.9
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is causally related to the accepted
injury. This burden requires furnishing 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 medical
reasoning.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing October 5, 2013 causally related to her accepted brachial, thoracic,
and lumbosacral neuritis/radiculitis conditions. Preliminarily, the Board notes that it is
unnecessary for the Board to consider the evidence appellant submitted prior to the issuance of
OWCP’s February 26, 2015 decision because the Board has already considered this evidence in
7

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

8

Id.

9

Shelley A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
10

S.S., 59 ECAB 315 (2008).

5

its November 9, 2015 decision and found that it failed to establish a worsening of the accepted
conditions, or that her light-duty position had been withdrawn. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.11
Appellant contended that the opinions of Dr. Ani, her attending Board-certified orthopedic
surgeon, established that her accepted conditions had worsened as of October 5, 2013 such that
she was unable to perform her light-duty position.
Dr. Ani provided notes dated from October 2015 through April 2017 finding appellant’s
condition had remained stable, with chronic cervical, thoracic, and lumbosacral neuritis or
radiculitis, and bilateral carpal tunnel syndrome. The Board notes that OWCP has not accepted
carpal tunnel syndrome as occupationally related.
In an April 20, 2017 report, Dr. Ani opined that appellant’s cervical, thoracic, and lumbar
spine pain, as well as bilateral hand and wrist pain, had worsened as of October 1, 2010. He
therefore decreased her allowed driving time as of September 23, 2013 to no more than 20 minutes
continuously to avoid additional compressive forces on the spine. Dr. Ani did not indicate that he
imposed the new driving limitation on September 23, 2013 due to an objective worsening of the
accepted conditions. 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.12 Dr. Ani failed to provide any medical explanation, based on medical rationale, as
to how her accepted condition had materially changed or how her disability arose without
intervening injury.13 Also, he did not opine that appellant was totally disabled for work
commencing October 5, 2013.14 As such Dr. Ani did not support appellant’s recurrence claim.
Appellant also asserts that the employing establishment’s withdrawal of her light-duty
position on October 6, 2013 constituted a recurrence of disability. It is her burden of proof to
establish that light-duty employment was, in fact, withdrawn.15 However, appellant did not
provide factual evidence to support this allegation. She submitted September 29 and October 30,
2014 letters in which the employing establishment notified appellant that there was no work
available within a 20-minute drive of her residence. However, the 20-minute driving restriction
prescribed by Dr. Ani on September 23, 2013 was not shown to be related to an objective
worsening of the accepted conditions. Therefore, the lack of available work within this limitation
does not constitute a withdrawal of light-duty work.16

11

See B.R., Docket No. 17-0294 (issued May 11, 2018).

12

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

13
E.B., Docket No. 17-1467 (issued July 26, 2018); see S.E., Docket No. 08-2214 (issued May 6, 2009); T.M.,
Docket No. 08-0975 (issued February 6, 2009).
14

E.B., id.; see Leslie C. Moore, 52 ECAB 132 (2000).

15

L.M., Docket No. 17-0159 (issued September 27, 2017); J.F., 58 ECAB 124 (2006).

16

Terry R. Hedman, supra note 9.

6

On appeal, counsel contends that appellant has established that she sustained a recurrence
of disability as the medical evidence of record established a worsening of the accepted conditions
such that she could no longer drive herself to and from work. In support of this assertion, she cites
to the Board’s holding in G.L.,17 in which the Board found that the claimant asserted a period of
disability due to a condition not accepted by OWCP. This issue is not relevant to the present claim.
Counsel also cited to the Board’s decision in E.B.,18 which involved a refusal of an offered position
where the position description was too vague for the job to have been deemed suitable work. The
present claim, however, does not implicate a suitable work issue.
Alternatively, counsel asserts that employing establishment withdrew appellant’s lightduty position on October 6, 2013, entitling appellant to ongoing wage-loss compensation for total
disability commencing October 6, 2013. In support of this argument, counsel cites to K.J.,19 in
which the Board remanded a recurrence claim to OWCP for additional development of the medical
evidence. The Board notes that K.J. may be distinguished from the case at bar as the claimant had
not alleged a withdrawal of light duty, whereas appellant does argue that the employing
establishment withdrew her light-duty position.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing October 5, 2013 causally related to her accepted brachial, thoracic,
and lumbosacral neuritis/radiculitis.

17

Docket No. 13-0975 (issued August 12, 2013).

18

Docket No. 13-0309 (issued May 14, 2013).

19

Docket No. 10-0457 (issued September 15, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the September 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
FACILITY, Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-174
Issued: April 25, 2008

Case Submitted on the Record

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

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 24, 2007 with respect to a schedule award.
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 has more than a 16 percent permanent impairment to his
left upper extremity.
FACTUAL HISTORY
On July 29, 2003 appellant sustained a left thumb injury in the performance of duty when
his glove got caught in a timing belt pulley. Surgery was performed on July 29, 2003 that
resulted in a partial amputation of the left thumb. The Office accepted the claim for partial left
thumb amputation.

In a report dated October 11, 2004, Dr. David Weiss, an osteopath, opined that appellant
had a 28 percent left upper extremity impairment. He based his impairment rating on sensory
deficit, pain, loss of grip strength and loss of range of motion, as well as for the amputation itself.
An Office medical adviser opined in a June 19, 2005 report that appellant had a 25 percent left
arm impairment. The medical adviser indicated that a pain impairment of three percent was not
appropriate as no pain questionnaire was provided.
The Office found a conflict in the medical evidence under 5 U.S.C. § 8123(a) and
appellant was referred to Dr. Paul Jones, a Board-certified orthopedic surgeon. An Office
memorandum dated June 29, 2005 indicated that Dr. Jones was not selected through use of the
Physicians Directory System (PDS), but through another physician’s listing. In a report dated
July 29, 2005, Dr. Jones provided a history and results on examination. He indicated that the
amputation was through the distal half of the distal phalanx, with the interphalangeal (IP) joint
intact. Dr. Jones stated that the impairment for the amputation was 40 percent of the thumb or
10 percent of the left hand.1 He reported that appellant had mild numbness without significant
pain and he did not give an additional impairment.
By report dated August 12, 2005, an Office medical adviser opined that appellant had a
16 percent left upper extremity impairment. The medical adviser indicated that the thumb
impairment for the amputation was 40 percent, with a 5 percent impairment for sensory loss.
According to the medical adviser, a 45 percent thumb impairment was a 16 percent upper
extremity impairment.
In a decision dated September 23, 2005, the Office issued a schedule award for a
16 percent permanent impairment to the left upper extremity. The period of the award was 49.92
weeks commencing October 11, 2004.
Appellant requested a hearing before an Office hearing representative, which was held on
March 2, 2006. By decision dated June 5, 2006, the Office hearing representative set aside the
schedule award. The hearing representative found that a conflict in the medical evidence had not
existed, since Dr. Weiss and the Office medical adviser essentially agreed as to the impairment
rating. The hearing representative further determined that Dr. Jones had not properly been
selected as a referee physician, since the PDS system had not been used. The hearing
representative, found a conflict in the evidence now existed between Dr. Weiss and Dr. Jones
and the case was remanded for resolution of the conflict.
The Office referred appellant to Dr. Marc Appel, a Board-certified orthopedic surgeon,
for a referee examination. In a report dated October 21, 2006, Dr. Appel provided a history and
results on examination. He reported range of motion of the IP joint as 0 to 45 degrees, range of
motion for the metaphaloangeal (MP) joint 0 to 40 degrees. Dr. Appel indicated that appellant
was able to abduct to 70 degrees, adduct to the index finger area and oppose to the little finger.
He also reported intact sensation to the skin. Dr. Appel stated that appellant reported pain when
pressure was applied to the tip and denied numbness or tingling. With respect to the degree of
1

A 40 percent thumb impairment is a 16 percent hand impairment or a 14 percent upper extremity impairment.
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001),
438 Tables 16-1 and 16-2.

2

permanent impairment, he opined that the level of amputation was at 30 percent. As to range of
motion, Dr. Appel indicated that the IP joint impairment was a one percent upper extremity
impairment. He further stated:
“In view of all date reviewed, I would concur with the previous examination
performed by Dr. Jones of a 16 percent impairment of the left upper extremity.
This 16 percent impairment of the upper extremity would be inclusive of Table
16.4, page 440. Impairment percentage of amputation of thumb at level of IP
joint was listed at 11 percent. It is noted that the amputation level was distal to
such. This would include loss of motion, which correlated to a [one to two]
percent impairment. This would take into addition the sensory deficit and pain as
described by the patient. There is a lack of documentation to support any
impairment greater than the 16 percent.”
In a report dated November 18, 2006, an Office medical adviser stated that he agreed
with Dr. Appel.
By decision dated November 21, 2006, the Office determined that appellant did not have
more than a 16 percent left upper extremity impairment.
Appellant requested a hearing before an Office hearing representative, which was held on
March 20, 2007. He argued that Dr. Appel was not properly selected as a referee as other
physicians were bypassed Appellant also argued that Dr. Jones’ report should have been
excluded from the record.
By decision dated May 24, 2007, the Office hearing representative affirmed the
November 21, 2006 Office decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

3

ANALYSIS
The Office found that a conflict under 5 U.S.C. § 8123(a) existed between attending
physician, Dr. Weiss and Dr. Jones.4 In this regard, appellant argued that Dr. Jones’ report
should have been excluded, as he was not properly selected in accord with Office procedures.
The Board notes that the Office hearing representative, in the June 5, 2006 decision, found that
the record did not establish a conflict at the time of the referral to Dr. Jones. There was,
however, a “disagreement” as the Office medical adviser found that the pain impairment utilized
by Dr. Weiss was not established. The Office did not properly select Dr. Jones as a referee
physician, since he was not selected based on use of the PDS system in accord with Office
procedures.5 The opinion of Dr. Jones is not entitled to the special weight accorded to a referee
physician, but that does not require that his report be excluded. The Board has not required
exclusion of medical reports when there is a procedural violation in the selection that does not
involve an issue of undue influence or impartiality.6
Dr. Jones is therefore considered as a second opinion physician.7 The Board notes that,
while Dr. Jones referred to a 40 percent thumb impairment as a 10 percent hand impairment; it is
a 16 percent hand impairment or a 14 percent upper extremity impairment. There remained an
unresolved conflict in the medical evidence as to the degree of permanent impairment resulting
from the left thumb injury.
The Office referred appellant to Dr. Appel as a referee physician. Appellant argued at the
March 20, 2007 hearing that Dr. Appel was not properly selected. He did not raise this argument
prior to the examination by Dr. Appel, nor did he provide a reason other than a general allegation
that other physicians were bypassed without sufficient explanation. Counsel did not raise a
timely objection or provide a valid reason for this stated objection. Therefore the Board finds
that the evidence does not establish an error in the selection of Dr. Appel as a referee physician.8
Dr. Appel provided an opinion that appellant had a 16 percent left arm impairment. He
did not, however, provide a clear explanation of how he calculated the impairment. With respect
to the amputation itself, Dr. Appel indicated that he would find a 30 percent thumb impairment.
Table 16-4 provides a 50 percent thumb impairment or an 18 percent arm impairment, for
amputation at the IP level.9 As Dr. Appel noted, the amputation was above the IP level and
4

This section provides: “If there is a disagreement between the physician making the examination for the
Unites States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.”
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4 (May 2003).

6

See Terence R. Stath, 45 ECAB 412, 421 (1994). Exclusion of medical reports is required, for example, when
leading questions have been posed or a medical report is obtained through telephone contact with the Office.
7

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

8

See Willie M. Miller, 53 ECAB 697 (2002) (appellant did not raise objection to selection of referee physician
until after claim was denied and raised only general allegations the selection was improper).
9

A.M.A., Guides 440, Table 16-4. The conversion from thumb impairments to upper extremity impairments is
provided in Tables 16-1 and 16-2.

4

Figure 16-4 does indicate that a 30 percent thumb impairment would be appropriate.10 A
30 percent thumb impairment corresponds to an 11 percent arm impairment.
Dr. Appel’s report failed to adequately explain how he calculated the remaining five
percent arm impairment. He initially discussed only a one percent impairment for IP loss of
motion, but later referred to a one to two percent impairment for loss of motion. The A.M.A.
Guides provide tables for loss of motion due to loss of flexion/extension in the IP joint and the
MP joint. In addition, there are impairment ratings for loss of abduction, adduction and thumb
opposition.11 Dr. Appel did not specifically discuss the MP joint, although the reported 0 to 40
degrees would result in a thumb impairment. He also reported adduction to the index finger,
which would appear, pursuant to Figure 16-18 and Table 16-18b, to result in additional
impairment for loss of motion. Dr. Appel did not provide thumb adduction in centimeters as
required by the A.M.A., Guides and did not discuss these tables.
According to Dr. Appel, the 16 percent impairment included “the sensory deficit and pain
as described by the patient.” It is not clear what percentage he assigned to sensory deficit and
pain or how it was calculated. While other medical reports referred to sensory deficit, Dr. Appel
indicated that appellant did not report numbness or tingling and it is not clear whether he
performed two point discrimination assessment or how he evaluated sensory deficit.12 As to
pain, the A.M.A., Guides refers to pain associated with amputation and the methods of
evaluation,13 but Dr. Appel did not explain how he determined an impairment for pain.
The case will be remanded to the Office to request that Dr. Appel provide a supplemental
report that discusses the above issues and provides a clear explanation as to how the doctor
derived at his impairment rating. If he is unable to resolve the issues, the Office should refer
appellant for another referee examination and secure a rationalized medical report on the relevant
issues. After such further development as the Office deems necessary, it should issue an
appropriate decision.
CONCLUSION
Dr. Appel, the referee physician, did not properly resolve the conflict in the medical
evidence and the case will be remanded to the Office for further development.

10

Id. at 443, Figure 16-4.

11

Id. at 450-460, section 16.4.

12

See id. at 445, section 16.3

13

Id. at 444, section 16.2d.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 24, 2007 and November 21, 2006 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: April 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6