United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 22-0009
Issued: March 7, 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 October 3, 2021 appellant filed a timely appeal from a September 24, 2021 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 medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 6, 2020 appellant, then a 51-year-old program specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed trigger finger of her left middle finger due
to factors of her federal employment. She explained that she was working at her computer and
experienced left hand and left middle finger pain. Appellant noted that she first became aware of
1

5 U.S.C. § 8101 et seq.

her condition on April 21, 2020 and realized its relation to her federal employment on
May 5, 2020. She stopped work on May 6, 2020.
In a May 8, 2020 development letter, OWCP informed appellant that it had not received
any evidence in support of her claim. It advised her of the type of factual and medical evidence
necessary and provided a questionnaire for her completion. In a separate development letter of
even date, OWCP requested that the employing establishment provide additional information
regarding appellant’s alleged injury, including comments from a knowledgeable supervisor
regarding the accuracy of her allegations and an explanation of any areas of disagreeme nt. It
afforded both parties 30 days to submit the requested evidence.
OWCP thereafter received a May 5, 2020 after visit summary by Dr. Nwamaka Olutola
Oluwato, a Board-certified family physician, who noted a diagnosis of left trigger finger and
hypertension, and referred appellant for an orthopedic evaluation. In a separate note of even date,
Dr. Oluwato recommended that she remain out of work through May 8, 2020.
Dr. Audrey K. Tsao, a Board-certified orthopedic surgeon, in a note dated May 5, 2020,
also diagnosed left middle trigger finger.
In a May 13, 2020 response to OWCP’s questionnaire, appellant indicated that she believed
that typing on a computer and using a keyboard for eight to nine hours per day for the past 20 years
had caused her symptoms. She noted that on April 21, 2020 she was working at her keyboard and
started feeling pain in her left hand and left middle finger, which progressively worsened each day.
Appellant related that she then woke up on May 5, 2020 and her left middle finger was stuck in
the bent position, so she massaged it until straightened out.
In a May 15, 2020 response to OWCP’s development letter, the employing establishment
noted that appellant used a keyboard for up to eight hours per day, which depended upon whether
she had to attend conference calls.
OWCP also received a position description for a program specialist with the employing
establishment.
By decision dated August 4, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her federal employment.
OWCP continued to receive evidence, including a July 24, 2020 after visit summary by
Allison M. Parver, a physician assistant, who noted that appellant received an injection.
In a note dated September 4, 2020, Dr. Oluwato indicated that appellant had received
medical treatment for a diagnosis of left middle trigger finger. She opined that this diagnosis can
be caused by repetitive use, such as frequent typing or repeated finger and thumb use.
On September 12, 2020 appellant requested reconsideration of OWCP’s August 4, 2020
decision.
By decision dated December 11, 2020, OWCP denied modification of its August 4, 2020
decision.

2

On January 25, 2021 appellant requested reconsideration of OWCP’s December 11, 2020
decision. In support of her request, she submitted a January 13, 2021 note by Dr. Tsao, who
diagnosed left middle trigger finger and opined that typing and keyboard work had aggravated her
condition and irritated her trigger finger. The note further indicated that appellant had undergone
two injections and may require surgery.
By decision dated September 24, 2021, OWCP denied modification of its December 11,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 3 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. 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

2

Id.

3

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).
4

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).
5

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).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

A.K., Docket No. 21-0278 (issued July 12, 2021); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

M.V., Docket No. 18-0884 (issued December 28, 2018).

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rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In a January 13, 2021 medical note, Dr. Tsao diagnosed left middle trigger finger and
opined that typing and keyboard work had aggravated appellant’s condition and irritated her trigger
finger. Similarly, Dr. Oluwato, in her note dated September 4, 2020, opined that trigger finger can
be caused by repetitive use such as frequent typing or repeated finger and thumb use. While these
reports supported causal relationship, they did not a pathophysiological explanation of how the
accepted factors of federal employment were competent to cause the diagnosed condition . The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition was related to accepted
employment factors. 10 Consequently, the January 13, 2021 note by Dr. Tsao and September 4,
2020 note by Dr. Oluwato are insufficient to meet appellant’s burden of proof to establish her
claim.
In separate treatment notes dated May 5, 2020, Drs. Oluwato and Tsao diagnosed left
middle trigger finger, but did not provide an opinion on causation. 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. 11 Therefore, these notes are also insufficient
to establish appellant’s claim.
The remaining evidence of record consists of a July 24, 2020 after visit summary by
Ms. Parver, a physician assistant. Certain healthcare providers such as physician assistants,
physical therapists, nurse practitioners, and social workers are not considered “physician[s]” as
defined under FECA. 12 Consequently, their medical findings and/or opinions will not suffice for

9

Id.; Victor Woodhams, supra note 6.

10

J.W., Docket No. 18-0678 (issued March 3, 2020); G.R., Docket No. 19-0940 (issued December 20, 2019); D.L.,
Docket No. 19-0900 (issued October 28, 2019); see also V.T., Docket No. 18-0881 (issued November 19, 2018); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket
No. 08-2214 (issued May 6, 2009).
11

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

12

Section 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practic e as defined
by the applicable state law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2
Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical
therapists are not considered physicians under FECA).

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purposes of establishing entitlement to FECA benefits. As such, this evidence is insufficient to
establish appellant’s claim.13
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s diagnosed medical conditions and the accepted factors of her federal employment, 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 factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 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

13

D.P., Docket No. 19-1295 (issued March 16, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); see
M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, id.

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

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

Docket No. 21-1278
Issued: March 29, 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 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

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described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. 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 September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

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that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

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OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

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regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Northport, NY, Employer
__________________________________________

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

Docket No. 14-1267
Issued: September 26, 2014

Case Submitted on the Record

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

JURISDICTION
On May 13, 2014 appellant filed a timely appeal from a December 12, 2013 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
wrist injury in the performance of duty on August 18, 2013.
FACTUAL HISTORY
On October 24, 2013 appellant, then a 47-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 18, 2013 he sustained a left wrist injury when
1

5 U.S.C. § 8101 et seq.

he was covering a patient with a blanket and he was struck on the left wrist. He stopped work on
October 21, 2013 and notified his supervisor on October 24, 2013. The employing establishment
controverted the claim stating that appellant did not file his Form CA-1 within 30 days of the
injury and failed to immediately notify his supervisor. Appellant’s supervisor indicated that,
following the incident, appellant notified the workers’ compensation manager but refused
medical treatment.
In support of his claim, appellant submitted the October 18 and 28, 2013 return-to-work
notes from a physician’s assistant at Amityville Family Practice.
In an October 30, 2013 medical note, Dr. Brett M. Spain, an osteopath, diagnosed left
wrist pain, carpal tunnel syndrome and de Quervain’s tenosynovitis. He noted that appellant was
temporarily totally disabled due to left wrist pain.
By letter dated November 8, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. Appellant was advised of the factual and medical
evidence needed and asked to submit a narrative report from his physician within 30 days.
In support of his claim, appellant submitted an August 19, 2013 emergency room triage
note from Robert A. Milano, a registered nurse, who reported that appellant sought treatment for
left wrist and arm pain after being struck by a patient.
In an August 19, 2013 diagnostic report, Dr. Vijay Chandnani, a Board-certified
diagnostic radiologist, advised that an x-ray of the left wrist revealed no acute fracture,
dislocation or significant bony abnormality.
In an August 19, 2013 report, Dr. Yelda Nouri, Board-certified in internal medicine,
noted that appellant sought emergency treatment for complaints of left wrist pain after a patient
struck him on the wrist the previous day. Upon physical examination and review of diagnostic
testing, she diagnosed left wrist pain.
In a December 2, 2013 note, Dr. Elena Stybel, an osteopath, reported that appellant’s left
wrist was not fully healed, but that he could resume light-duty work.
By decision dated December 12, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish the causal relationship between the August 18,
2013 incident at work and his left wrist complaints.
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

2

employment injury.2 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.3
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.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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.5 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.6
ANALYSIS
OWCP accepted that the August 18, 2013 incident occurred as alleged. The issue is
whether appellant submitted sufficient medical evidence to establish that the employment
incident caused a left wrist injury. The Board finds that he did not submit sufficient medical
evidence to support that he sustained an injury causally related to the August 18, 2013
employment incident.7 The medical evidence is deficient on two grounds: first, it fails to
provide a firm medical diagnosis; and second, there is no narrative opinion on causal relationship
addressing how appellant’s left wrist condition was caused or contributed to by the employment
incident.
In an August 19, 2013 medical report, Dr. Nouri reported that appellant sought
emergency treatment for complaints of left wrist pain after a patient struck him on the wrist.
Upon physical examination and review of diagnostic testing, she diagnosed left wrist pain. The
2

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

3

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

4

Elaine Pendleton, supra note 2.

5

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

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

3

Board finds that Dr. Nouri failed to provide a specific medical diagnosis of appellant’s left wrist
injury. Dr. Nouri’s diagnosis of left wrist pain is a description of a symptom rather than a firm
diagnosis of a compensable medical condition.8 While she noted the August 18, 2013 incident,
Dr. Nouri did not provide a firm medical diagnosis that caused his left wrist pain. Dr. Nouri’s
report does not constitute probative medical evidence because she failed to provide a clear
diagnosis and failed to adequately explain the cause of appellant’s left wrist condition.9
In an October 30, 2013 medical note, Dr. Spain diagnosed left wrist pain, carpal tunnel
syndrome and de Quervain’s tenosynovitis. He found appellant temporarily totally disabled due
to left wrist pain. The Board notes that Dr. Spain failed to provide a medical history, findings on
physical examination, review of diagnostic testing or any details pertaining to the August 18,
2013 employment incident. Without any mention of the August 18, 2013 employment incident,
his diagnosis of left wrist pain, carpal tunnel syndrome and de Quervain’s tenosynovitis lacks
any narrative addressing causal relationship to the incident accepted in this case. Dr. Spain’s
report does not establish that appellant’s carpal tunnel syndrome and de Quervain’s tenosynovitis
were caused by the August 18, 2013 incident at work. Appellant has failed to meet his burden of
proof.10
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Chandnani’s diagnostic report indicated no acute bone injury. Dr. Stybel’s
December 2, 2013 note also failed to state a left wrist injury for which appellant was seeking
treatment. The physician’s assistant and nursing notes are also of no probative value. A
registered nurse, licensed practical nurse, physician’s assistant, or physical and occupational
therapist, are not physicians as defined under FECA, and their opinions are of no probative
value.11
The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.12 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.13 To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report that addresses the August 18, 2013 incident at work and how it caused a left
wrist injury.14
8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
9

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

10

S.Y., Docket No. 11-1816 (issued March 16, 2012).

11

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.
12

Daniel O. Vasquez, 57 ECAB 559 (2006).

13

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

14

Supra note 3.

4

In the instant case, appellant established that the August 18, 2013 incident occurred as
alleged. He failed, however, to submit medical evidence expressing how his left wrist condition
is causally related to the accepted August 18, 2013 employment incident. Appellant has failed to
meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left wrist injury in the performance of duty on August 18, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, LA, Employer
__________________________________________

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

Docket No. 16-1347
Issued: March 8, 2017

Case Submitted on the Record

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

JURISDICTION
On June 8, 2016 appellant filed a timely appeal from a December 16, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish a right hip condition
causally related to factors of his federal employment.
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 16, 2015, the date of OWCP’s last decision was
June 13, 2016. Since using June 14, 2016, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is June 8, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 4, 2015 appellant, then a 60-year-old retired city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained a right hip condition in the
performance of his work duties. He noted that he first became aware of his condition on July 28,
2015 and its relation to his employment on August 4, 2015.
Appellant retired on
November 22, 2014.
In an August 4, 2015 statement, appellant indicated that he had worked as a city letter
carrier for 32 years and retired on November 22, 2014. His normal duties consisted of driving,
standing, walking, bending, stooping, lifting, pushing, pulling, reaching, twisting, and turning,
which he performed eight hours a day for five days a week. Appellant noted his belief that his
repetitive work caused the pain on the right side of his body. He advised that his hobby was
walking.
In an August 4, 2015 report, Dr. Roy Berkowitz, a general surgeon, noted that appellant
worked as city mail carrier for 32 years until his November 2014 retirement. In February 2015,
he started having right hip pain which started as occasional every few days and progressed to the
point where it hurt daily. Dr. Berkowitz noted appellant’s medical course, provided examination
findings and diagnosed osteoarthritis of the right hip. He reported that a city mail carrier
typically walks 10 to 12 miles a day and works five to six days per week, yielding 50 miles of
walking per week. Dr. Berkowitz indicated that appellant had been doing this for 32 years and
has walked approximately 80,000 miles in his career. Although appellant’s pain did not become
constant until after he retired, arthritis of the hip takes more than just a few months to develop.
Dr. Berkowitz opined that if appellant’s history was correct, he had an employment-related
chronic occupational injury.
In a September 28, 2015 letter, OWCP advised appellant of the factual and medical
evidence needed to establish his claim, including a detailed narrative report from his physician
which included a history of the injury and a medical explanation with objective evidence of how
those work factors would cause the claimed condition. Clarification was also requested as to
how the February 2015 injury was related to his job duties after he retired on November 22, 2014
and how often he engaged in his hobby of walking. It afforded him 30 days to submit such
evidence.
In an October 13, 2015 letter, appellant responded to OWCP’s questions. He indicated
that after retiring, in January 2015 he started walking about three miles two to three days a week.
However, when appellant noted that his hip was hurting, he decreased the amount of time he
walked. He is now unable to walk for long periods of time.
Medical reports from Dr. Berkowitz dated September 8 and October 13, 2015 diagnosed
osteoarthritis of the right hip. An August 4, 2015 x-ray of his right hip was interpreted as
“moderate degenerative change of the femoral head.”
In an October 13, 2015 letter, Dr. Berkowitz noted that appellant walked approximately
80,000 miles in his postal career and that osteoarthritis was most often caused by use. He
indicated that osteoarthritis was a degenerative disease and opined it was caused by the amount

2

of walking appellant did for the employing establishment. He noted that an x-ray of his right hip
showed “moderate degenerative change of the femoral head.” Dr. Berkowitz stated that there
was no alterative explanation for appellant’s injured hip other than his having walked so far
while working for the employing establishment for 32 years.
By decision dated December 16, 2015, OWCP denied appellant’s claim, finding that
although he had established the implicated employment factors, the medical evidence of record
was insufficient to establish that he sustained an injury in the performance of duty. It noted that
appellant retired on November 22, 2014, but did not notice his hip pain until February 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his 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.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

7

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS
It is undisputed that appellant walked as a part of his job. Therefore, the Board finds that
the first component of fact of injury is established. However, the Board finds that the medical
evidence of record is insufficient to establish that this factor of his federal employment caused or
aggravated appellant’s right hip condition.
In his August 4, 2015 report, Dr. Berkowitz noted that appellant worked as city mail
carrier for 32 years doing numerous amounts of walking during his career and had retired in
November 2014. He diagnosed osteoarthritis of the right hip. Dr. Berkowitz indicated that the
right hip pain started in February 2015. He opined appellant had an employment-related chronic
occupational injury. Dr. Berkowitz indicated that although appellant’s pain did not become
constant until after he retired, arthritis of the hip takes more than just a few months to develop.
In his October 13, 2015 letter, he noted that osteoarthritis was a degenerative disease and was
most often caused by use. Dr. Berkowitz opined that appellant’s osteoarthritis of the right hip
was caused by the amount of walking appellant did for the employing establishment over a 32year period and that there was no alterative explanation for appellant’s injured hip. These
reports, however, are insufficiently rationalized as they do not explain the mechanics by which
workplace walking and standing versus normal everyday walking and standing caused or
aggravated appellant’s condition. The Board has long held that medical opinions not containing
rationale on causal relationship are of diminished probative value and are generally insufficient
to meet appellant’s burden of proof.8
Accordingly, this claim is deficient because appellant has not submitted medical evidence
explaining how the established work factors caused or contributed to the diagnosed condition.
As noted, causal relationship is a medical question that must be established by probative medical
opinion from a physician.9 Because appellant has not provided such medical opinion evidence in
this case, he has failed to meet 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 right hip
condition causally related to factors of his federal employment.

8

J.M., Docket No. 15-1906 (issued January 7, 2016); Carolyn F. Allen, 47 ECAB 240 (1995).

9

See Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment
factors identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T.,
Docket No. 11-237 (issued September 9, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2015 is affirmed.
Issued: March 8, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., claiming as widow of S.D., Appellant
and
U.S. POSTAL SERVICE, POST, OFFICE,
Spring Valley, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-1857
Issued: March 26, 2008

Oral Argument January 8, 2008

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

JURISDICTION
On July 6, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated April 20, 2007 denying her claim for death benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has established a compensable factor of retaliation
and harassment; and (2) whether appellant has met her burden of proof to establish that the
employee’s death was causally related to factors of his federal employment.

FACTUAL HISTORY
This case is before the Board for the third time. In a January 24, 2000 decision,1 the
Board found that the factual evidence established a compensable factor under Cutler.2 The
employee’s postal route required more than eight hours to prepare and complete. The Board
remanded the case to the Office for further development of the claim. On remand, the Office
accepted the claim August 13, 2001 for adjustment disorder with mixed anxiety and depressed
mood. It authorized compensation for the period July 12 to October 23, 1997, the date the
emotional condition was found to have resolved. In a March 9, 2007 decision, the Board set
aside a nonmerit decision dated June 2, 2006.3 The Board found that the Office improperly
denied appellant’s request for reconsideration as she had submitted relevant new factual
evidence. The facts and circumstances of the case are set forth in the Board’s prior decisions and
are hereby incorporated by reference.4 The facts and the circumstances relevant to the current
appeal are set forth below.
The relevant medical evidence includes reports dated June 20, 2003 and April 30, 2004
by Dr. Paul Rosch, a Board-certified internist. On June 20, 2003 Dr. Rosch reviewed the
employee’s medical records and factual evidence from his occupational disease claim. He
opined that the employee “was subjected to severe and persistent stress at work. Dr. Rosch
stated that, “[a]lthough not easy to prove, it is” also my opinion that job stress contributed to the
development and fairly rapid downhill course of his colon cancer.” He noted that stress had been
shown to accelerate the spread and growth of malignant tumors and emotional stress had been
shown to depress natural killer cells and other immune system components responsible for
resistance to carcinogens. Dr. Rosch noted caveats in attributing the employee’s cancer to stress,
but concluded they could be dismissed in the employee’s case “because of the well-documented
harassment at work he was subject to, the temporal relationship with his symptoms of colon
cancer and the absence of other competent contributing causes.” He opined that the severe and
persistent emotional stress at work “was not only responsible for his emotional breakdown but
also contributed to the development and unusually rapid downhill course of his colon cancer.”
On April 30, 2004 Dr. Rosch reported that the employee’s inability to complete his work duties
in eight hours “created an atmosphere of severe and persistent stress.” He opined: “that this type
of stress, particularly when associated with ‘overwork and fatigue,’ can weaken immune system
resistance to cancer.”

1

Docket No. 99-1439 (issued January 24, 2000). On May 26, 1998 the Office denied the employee's emotional
condition claim on the basis that he failed to establish a compensable factor of employment. An Office hearing
representative affirmed the denial of his claim on December 31, 1998. On January 24, 2000 the Board adopted the
decision of the hearing representative to find that the employee had not substantiated his allegations of harassment
or discrimination.
2

Lillian Cutler, 28 ECAB 125 (1976).

3

Docket No.06-1937 (issued March 9, 2007).

4

The employee died on April 12, 2001 and appellant, the employee’s widow, filed a claim for survivor’s benefits
(Form CA-5) on September 3, 2003 alleging that the employee’s death was causally related to his accepted
employment injury.

2

On August 16, 2004 the Office received a report from Dr. Suresh B. Katakkar, a second
opinion Board-certified internist with a subspecialty in medical oncology. Dr. Katakkar
reviewed the employee’s medical records and statement of accepted facts. He opined that he did
not believe that the employee’s stress had induced the cancer. Dr. Katakkar agreed with
Dr. Rosch in that stress can cause a problem over a period of time. On September 7, 2004
Dr. Katakkar stated that the employee’s colon cancer was unrelated to the accepted mixed
anxiety disorder or adjustment disorder. He opined that he did not believe that depression caused
or induced any cancer in the employee.
On March 14, 2005 the Office received a report from Dr. Bernard S. Siegel, a Boardcertified surgeon. After reviewing the employee’s medical records and work history, Dr. Siegel
agreed with the findings of Dr. Rosch. Dr. Siegel determined that the work stress the employee
was under contributed to the rapid progression of his disease.
The relevant factual evidence includes a copy of the transcript before Administrative
Judge Dennis Carter in the employee’s Equal Employment Opportunity Commission (EEOC)
claim, two pages of an April 24, 2002 decision and an April 3, 2006 letter from Bruce Lane,
Manager of Human Resources at the employing establishment. Judge Carter found the
following:
“I find the evidence established that the RMOS were not completely truthful, but I
do not find that the preponderance of the evidence established their lies were
retaliation for EEO activity. After a thorough review of the record and assessing
the credibility of the RMOS, I find that PM Kelley was the driving force behind
the close monitoring of the [c]omplainant’s work performance because she was
retaliating against the complainant because of his aggressive role in Project Hope,
which made her look bad to higher management in the District. I further find that
Project Hope was the origin of the retaliatory actions the [c]omplainant identified
as continuing harassment rendering his work environment hostile and abusive.
The RMOS used the [c]omplainant as an example of what happens when an
employee speaks out against management actions, i.e., his work performance
became closely monitored, his requests for help were continuously scrutinized
and criticized and when he spoke up at standups he was ignored. Notwithstanding
this finding, the [c]omplainant failed to establish that Project Hope involved Title
VII, ADA [Americans with Disabilities Act], EPA [Environmental Protection
Act] or Rehab Act issues. In fact, the preponderance of the evidence did not show
that the [c]omplainant engaged in protected EEO[C] activity known to the RMOs
until after he filed the EEO[C] complaint that served as the basis for this hearing.
Accordingly, I find that even though the [a]gency’s articulated reasons for its
actions were retaliatory linked to the [c]omplainant’s active involvement with
Project Hope, the preponderance of the evidence did not establish that
Project Hope involved EEO[C] issues. Thus, since the [c]omplainant was not
engaged in opposition to discriminatory practices, he cannot recover for the
[a]gency’s retaliatory actions in this forum.”

3

On April 3, 2006 Mr. Lane noted that the employing establishment “regrets that the
relationship between your husband and local management officials was characterized by friction
during his final years of service” and that it was unfortunate that this situation caused stress for
your husband.
In an April 20, 2007 decision, the Office found the record insufficient to establish any
additional compensable factors. The Office noted that it was not to make a decision on the
significance of the redacted two-page EEOC decision and that EEOC determinations were not
binding on it. The medical evidence was found insufficient to support that the employee’s death
was causally related to the accepted employment factor, relying on the referral opinion of
Dr. Katakkar.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 It is well established, however, that there are disabilities having some
kind of causal connection with the employment that are not covered under workers’
compensation, such as when disability results from an employee’s fear of a reduction-in-force or
frustration from not being permitted to work in a particular environment or to hold a particular
position.6
Workers’ compensation law does not cover an emotional reaction to administrative or
personnel actions unless the evidence shows error or abuse on the part of the employing
establishment.7 The Board has held that actions of an employer which the employee
characterizes as harassment or discrimination may constitute a factor of employment giving rise
to coverage under the Act, but there must be some evidence that harassment or discrimination
did in fact occur. Generally, allegations alone by a claimant are insufficient to establish a factual
basis for an emotional condition claim.8 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.9 The primary reason for requiring factual
evidence from the claimant in support of his allegations of stress in the workplace is to establish

5

5 U.S.C. § 8102(a).

6

Lillian Cutler, supra note 2.

7

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991), reaff d on recon., 41 ECAB 387 (1990).

8

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
9

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).

4

a basis in fact for the contentions made, as opposed to mere perceptions of the claimant, which in
turn may be fully examined and evaluated by the Office and the Board.10
ANALYSIS -- ISSUE 1
The Board previously found a compensable work factor under Cutler. Appellant
contends that the Office should have also accepted as compensable the fact that the employee
was subjected to harassment and retaliation prior to his death. The issue to be resolved is
whether appellant has submitted sufficient evidence to establish the allegations of harassment
and retaliation.
Mr. Lane’s April 3, 2006 letter is insufficient to establish the allegations of harassment.
While he expressed regret that there was friction between her husband and employing
establishment management, there was no admission of any wrongdoing on the part of the
employing establishment.
There was, however, evidence submitted with respect to a claim of harassment and
retaliation regarding the actions of Ms. Kelley. Although the entire decision is not of record, the
April 4, 2002 decision of the EEOC administrative judge appears to include a finding of
harassment, retaliation and hostile work environment. The Office acknowledged the relevance
of the April 4, 2002 EEOC administrative judge’s decision, but stated it was unable to make a
finding on this evidence as the decision was incomplete and redacted. It is well established that,
while the findings of other federal agencies are not dispositive with regard to questions arising
under the Act, such evidence may be given weight by the Office and the Board.11 Proceedings
under the Act are not adversary in nature, nor is the Office a disinterested arbiter. While the
claimant has the burden to establish entitlement to compensation, the Office shares responsibility
in the development of the evidence. It has the obligation to see that justice is done.12
On return of the case record, the Office should secure a complete copy of the
administrative judge’s EEOC decision and make an appropriate finding with respect to the
alleged work factor.13 After such further development as the Office deems necessary, it should
issue an appropriate decision.14
CONCLUSION
The Board finds that appellant’s case is not in posture for a decision on the issue of
whether she established compensable factors of harassment and retaliation.
10

Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom, M., concurring).

11

See Michael A. Deas, 53 ECAB 208 (2001).

12

Rebecca O. Bolte, 57 ECAB ___ (Docket No. 05-495, issued July 20, 2006).

13

See Pamela D. Casey, 57 ECAB ___ (Docket No. 05-1768, issued December 13, 2005) (the Board remanded
the case for the Office to secure a complete copy of the administrative judge’s decision and make an appropriate
finding with respect to the alleged work factor).
14

In light of the disposition of issue 1, the Board will not review the medical evidence.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 20, 2007 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: March 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Leavenworth, KS, Employer
)
___________________________________________ )
C.S., Appellant

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

Docket No. 06-1555
Issued: March 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decisions dated August 8 and October 20, 2005 and April 18, 2006,
which denied her claim of a lumbosacral condition. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits.
ISSUE
The issue is whether appellant met her burden of proof to establish that her claim should
be expanded to include a consequential L5-S1 condition, and authorization for an L5 and L5-S1
percutaneous discectomy.
FACTUAL HISTORY
On January 8, 2002 appellant, then a 45-year-old supervisor in health information
management, filed a traumatic injury claim alleging that on January 7, 2002 she slipped on icy

steps in the performance of duty.1 The Office accepted the claim for a lumbar strain.2 On
September 10, 2002 the Office authorized lumbar microdisc surgery at L4-5.3 It also accepted
bilateral chondromalacia of the patella, right medial meniscus tear and left medial meniscus tear
with surgical repair.
A magnetic resonance imaging (MRI) scan dated October 23, 2003, read by Dr. Kenneth
Alfieri, a Board-certified diagnostic radiologist, revealed mild bulging posteriorly of the L4-5
disc with associated facet hypertrophy and significant bilateral neural foraminal narrowing.
In a January 8, 2004 report, Dr. Frank P. Holladay, a Board-certified neurosurgeon,
diagnosed appellant with exacerbation of lumbar strain and opined that it was “perhaps” due to
problems with her knees or because of degenerative disease in her lower back. In a February 9,
2004 report, he determined that appellant had foraminal narrowing at L4-5 on the right side but
opined that “it did not appear to be severe.” Dr. Holladay recommended a lumbar myelogram.
In a February 23, 2004 lumbar myelogram, Dr. Thomas W. Zinn, a Board-certified diagnostic
radiologist, opined that appellant had a bulging disc within the left lateral recess at L4-5;
however, it did not displace the L5 root or produce significant spinal stenosis. He indicated that
this finding was “invisible” on the myelogram and that no other abnormalities were noted. In a
March 1, 2004 report, Dr. Holladay noted that appellant related low back pain radiating into the
leg; however, lumbar myelogram results were normal. He diagnosed chronic lumbar strain and
recommended treatment with a physiatrist. In a January 28, 2005 report, Dr. Holladay noted that
he could not do anything further for appellant.
Dr. S.R. Reddy Katta, a Board-certified physiatrist, provided reports dating from
March 2004 to March 2005. He advised that appellant started having lower back pain after a fall
on the ice on January 7, 2002. Dr. Katta determined that appellant had chronic lower back pain
as a result of her degenerative disc disease, and associated it with lumbar paraspinal and gluteal
muscle strain and right trochanteric bursitis. He noted that appellant had degenerative joint
disease of both knees with left anserine bursitis and no clinical evidence of ongoing lumbar
radiculopathy.
In an August 23, 2004 report, Dr. Brian Jones, a Board-certified anesthesiologist, noted
that appellant’s MRI scan showed a recurrent protruding disc at L4-5. In an October 11, 2004
follow-up report, he recommended a caudal epidural steroid injection.

1

Appellant has a separate claim under File No. 110167010 for an injury on June 9, 1998 that was accepted for left
shoulder strain and impingement syndrome, aggravation of degenerative osteoarthritis, neck strain and lumbar back
strain. It was determined that the neck and low back strains had resolved by July 10, 1998. The case was expanded
to accept a left shoulder arthroscopy. The case was on appeal before the Board in Docket No. 04-1584 (issued
June 7, 2004). The Board affirmed the Office’s September 23, 2003 schedule award decision, finding that appellant
had no more than a 10 percent impairment of her left arm.
2

Appellant returned to regular duty on March 6, 2002.

3

Appellant returned to regular duty on November 12, 2002. The record reflects that she has a nonwork-related
left shoulder impingement with surgery which was performed on August 18, 1993 and a prolapsed mitral valve.

2

In a May 17, 2005 report, Dr. Mark A. Greenfield, a Board-certified anesthesiologist,
noted that appellant was initially injured in January 2002. Appellant related that she was house
cleaning the day before and was not able to move at all. Dr. Greenfield diagnosed intervertebral
disc disorder, lumbar or lumbosacral intervertebral disc, and lumbar radiculopathy and advised
that he would proceed with an electromyogram (EMG) and lumbar discography. In a June 21,
2005 discogram, he noted that appellant had low back pain without radiation at the L4-5 and L5S1 levels, a posterior bulging disc with a degenerative pattern, bilateral hip pain, and posterior
protrusion and diagnosed lumbar radiculopathy. Dr. Greenfield also noted that appellant had
degenerative disc disease at L3-4, L4-5 and L5-S1. He diagnosed a normal L2-3 intervertebral
disc, a posterior with bulging discs with Grade 5 annular disruptions at L3-4 and L4-5, and
degenerative disc disease at L3-4, L4-5 and L5-S1. In a July 5, 2005 report, Dr. Greenfield
diagnosed intervertebral disc disorders, lumbar or lumbosacral intervertebral disc and lumbar
radiculopathy. He recommended L4-5 and L5-S1 percutaneous discectomy.
In a July 11, 2005 report, Dr. Katta noted that on examination appellant walked without
any gait deviation, although she continued to have painfully limited movements of her
thoracolumbar spine at the extremes. He advised that straight leg raising was negative
bilaterally, and that appellant continued to have localized tenderness to palpation over the
thoracic and lumbar paraspinal muscles extending over the sacroiliac joint area with relative
weakness of the lower back muscles and painfully limited movements of her thoracolumbar
spine. Dr. Katta indicated that appellant had normal muscle strength in both upper and lower
extremities and deep tendon reflexes were “2+” and symmetrical. He also noted that appellant
remained independent with her mobility. Dr. Katta diagnosed chronic thoracolumbar sprain with
radiological evidence of degenerative joint disease of lumbar vertebrae and degenerative joint
disease of both knees and degenerative meniscal tears of both knees, and degenerative disc
disease involving T7, T8 and T8-9.
On July 12, 2005 the Office received a request to authorize a percutaneous discectomy at
L4-5 and L5-S1.
In a July 31, 2005 report, an Office medical adviser noted appellant’s history and opined
that “there is no recognizable medical condition affecting the L5-S1 disc based on the definitive
myelogram with computerized axial tomography (CAT) scan follow up performed on
February 23, 2004 or the lumbar MRI scan dated October 23, 2003.” He further advised that
there was no evidence of lumbar radiculopathy, plexopathy, myopathy or neuropathy. The
Office medical adviser noted that the June 21, 20054 discogram revealed that, at L4-5 and L5-S1,
appellant had low back pain at both levels and at the L5-S1 level and bilateral hip pain, a
posterior bulging disc with a degenerative pattern at L4-5 and at L5-S1 a diffuse spread pattern
with associated posterior protrusion. He noted that Dr. Greenfield disregarded the normal
findings at L4-5 in the earlier lumbar MRI scan with computerized tomography (CT) scan, and
recommended percutaneous disc decompressions at L4-5 and L5-S1. The Office medical adviser
explained that in his July 11, 2005 report Dr. Katta related that appellant walked into his office
without any gait deviation, that her straight leg raisings were negative bilaterally, and that her
lower and upper extremity strength was normal. He explained that the only report that supported
4

While he indicated January 21, 2005, this appears to be a typographical error, as it is actually June 21, 2005.

3

the procedure was the lumbar discography; however, the lumbar MRI scan and the myelogram
with CT scan follow up did not demonstrate any abnormalities. The Office medical adviser
recommended that the two level lumbar percutaneous disc compression not be authorized. He
explained that, if a lumbar disc were to consequentially be accepted, it would have to be at the
L3-4 level, above the accepted level. The Office medical adviser explained that it was generally
accepted in lumbar spine conditions that disc levels above an injured level could be at an
increased risk from wear and tear as a result of splinting and increased mobility needs at the next
higher level. However, he explained that this would not apply to a lower level, because of the
pathology directly above causing substantially fewer demands for movement.
By decision dated August 8, 2005, the Office denied appellant’s claim for a consequential
L5-S1 condition and authorization for a percutaneous discectomy. The Office found that the
medical evidence was insufficient to establish that her L5-S1 condition was a consequence of the
accepted injury or that the accepted condition necessitated the need for surgery.
By letter dated September 27, 2005, appellant requested reconsideration.5 In a January 5,
2005 lumbar spine MRI scan, Dr. Dipak C. Shah, a Board-certified radiologist, noted findings
including postsurgical changes in the soft tissues posterior to the posterior elements of the L4
vertebra, a left foraminal disc protrusion and posterior osteophyte formation at the level of the
L4-5 intervertebral disc level, and degenerative arthritic changes in the facet joint of the L4-5
and L5-S1 vertebra. The scan revealed a bulging annulus at the L3-4 and L4-5 intervertebral
disc levels, and a loss of normal signal from the L3-4 and L4-5 intervertebral disc, which
represented degenerative changes. Dr. Shah explained that the combination of disc protrusion
and posterior osteophyte formation in the left foraminal region of the L4-5 intervertebral disc
level caused encroachment of the left neural foramina at the L4-5 intervertebral disc level. He
noted degenerative arthritic changes in the facet joint of the L4-5 and L5-S1 vertebra, a bulging
annulus at the L3-4 and L4-5 intervertebral disc levels, and a loss of normal signal from the L3-4
and L4-5 intervertebral discs which were degenerative.
In an August 24, 2005 report, Dr. Greenfield indicated that appellant had a history of low
back pain and bilateral radicular pain, previous refractory for multiple treatment modalities. He
advised that appellant underwent discography on June 21, 2005. Dr. Greenfield determined that
she had discogenic pain at L5-S1 greater than at L4-5. He again recommended that appellant
undergo an L4-5 and L5-S1 percutaneous disc compression.
By decision dated October 20, 2005, the Office denied modification of the August 8,
2005 decision.
In a December 27, 2004 report, Dr. Holladay noted that appellant related that she had
pain in both legs, her back and thigh. He conducted a physical examination and advised that her
motor, sensory and reflex examinations were unremarkable with the exception of positive
straight leg raising with back and leg pain bilaterally. Dr. Holladay recommended an MRI scan.
In an October 10, 2005 report, Dr. Katta advised that appellant walked without any obvious gait
deviation, although he noted that she had painfully limited movements of her thoracolumbar
spine at the extremes. He diagnosed chronic thoracolumbar sprain with radiological evidence of
5

Appellant withdrew her August 11, 2005 request for a hearing.

4

degenerative joint disease of the lumbar vertebrae and indicated that there was evidence of
degenerative disc disease involving the thoracic vertebrae.6
On December 10, 2005 appellant requested reconsideration.
She submitted an
October 27, 2005 report from Dr. Greenfield who noted that she had a history of back pain with
leg pain dating to January 2002. Dr. Greenfield stated that previous diagnostic tests revealed
discogenic disease, including degenerative disc disease and disc protrusion at L4-5 and facet
joint changes in the lower lumbar and lumbosacral spine. He indicated that discogenic pain was
identified at L4-5 and L5-S1. Dr. Greenfield opined that “it would appear that the discogenic
pain at L4-5 and L5-S1 [were] intimately related.” He advised that appellant would be a good
candidate for percutaneous disc decompression to treat her discogenic pain. In a November 3,
2005 report, Dr. Greenfield diagnosed cervical radiculopathy and performed a cervical epidural
nerve block with steroid augmentation.
In a January 9, 2006 treatment note, Dr. Katta reiterated his previous diagnoses. A
January 5, 2005 EMG and nerve conduction study was read by Dr. Fariz Habib, a Board-certified
neurologist, as normal. It showed no evidence of entrapment neuropathy in the upper
extremities, peripheral neuropathy, cervical radiculopathy or myopathy. Dr. Habib noted that
tendinitis, cumulative injury syndrome or overuse syndrome, may have contributed to the current
symptomatology. The Office also received a copy of Dr. Greenfield’s June 21, 2005 lumbar
discogram, and treatment notes dated October 13, 2004 and June 2, 2005, from Dr. William
Bohn, a Board-certified orthopedic surgeon, who noted appellant’s history and diagnosed
chronic rotator cuff tendinitis and bursitis with impingement of the left shoulder. Dr. Bohn also
diagnosed chronic cervical strain and opined that appellant had impairment related to her
cervical spine, which “appears to all be related to the elevator accident.” The Office also
received treatment notes from Dr. Jones, dated August 23 and October 11, 2004, which
contained a diagnosis of lumbar radiculopathy.
By decision dated April 18, 2006, the Office denied modification of its October 20, 2005
decision.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.7
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.8 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new

6

He also diagnosed degenerative joint disease of both knees with degenerative meniscal tears of both knees.

7

Albert F. Ranieri, 55 ECAB 598 (2004).

8

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

5

or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.9
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.10 The Office has the general objective of
ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. The Office therefore has broad administrative discretion in choosing means to
achieve this goal. The only limitation on the Office’s authority is that of reasonableness. Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.11
In order for a surgery to be authorized, a claimant must submit evidence to show that the
requested procedure is for a condition causally related to the employment injury and that it is
medically warranted. Both of these criteria must be met in order for the Office to authorize
payment.12
ANALYSIS
Appellant sustained injury on January 7, 2002 accepted for a lumbar strain for which she
underwent surgery at L4-5. The Office also accepted bilateral knee conditions related to her fall.
The Board finds that appellant submitted insufficient medical evidence to establish a
consequential L5-S1 condition or necessity for an L5 and L5-S1 percutaneous discectomy due to
residuals of her January 7, 2002 employment injury.
The Office received several reports from Dr. Holladay. In a January 8, 2004 report,
Dr. Holladay stated that the exacerbation of lumbar strain was “perhaps” due to problems with
her knees, or because of the degenerative disease. The Board has held that an opinion which is
speculative in nature has limited probative value in determining the issue of causal relationship.13
Other reports submitted by Dr. Holladay, did not provide any opinion on causal relationship.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.14
9

Kathy A. Kelley, 55 ECAB 206 (2004).

10

5 U.S.C. § 8103(a).

11

Francis H. Smith, 46 ECAB 392 (1995); Daniel J. Perea, 42 ECAB 214 (1990).

12

Cathy B. Mullin, 51 ECAB 331 (2000).

13

Arthur P. Vliet, 31 ECAB 366 (1979).

14

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

6

The Office also received several reports from Dr. Katta dating from March 2004 to
January 2006. However, Dr. Katta’s reports are of limited probative value as they noted that
appellant’s condition was degenerative. He determined that appellant’s chronic lower back pain
resulted from her degenerative disc disease. Dr. Katta opined that there was no clinical evidence
of ongoing lumbar radiculopathy and provided no reasoned opinion supporting that the claimed
L5-S1 condition was a direct and natural result of the January 7, 2002 work injury. In his
July 11 and October 2005 reports, Dr. Katta noted that, on physical examination, appellant
walked in without any gait deviation, despite having limited movements of her thoracolumbar
spine. Dr. Katta again attributed her condition to degenerative joint disease of lumbar vertebrae
and thoracic vertebrae.
Dr. Greenfield advised that appellant was unable to move after cleaning her house the
previous day. This report did not contain any opinion on causal relation. In an October 27, 2005
report, Dr. Greenfield noted that appellant had a history of back pain dating back to
January 2002, and that she had degenerative disc disease and discogenic pain at L4-5 and L5-S1.
He opined that “it would appear that the discogenic pain at L4-5 and L5-S1 [were] intimately
related” and recommended percutaneous disc decompression. However, Dr. Greenfield’s
opinion on causal relation is speculative in nature. The Board has held that medical opinions that
are speculative or equivocal in character are of diminished probative value.15 Dr. Greenfield did
not otherwise provide any medical reasoning or rationale to support his opinion on causal
relationship.16 Other reports submitted by Dr. Greenfield, did not provide any opinion on causal
relationship. For example, his June 21, 2005 report diagnosed a posterior with bulging discs
with Grade 5 annular disruptions at L3-4 and L4-5 and degenerative disc disease at L3-4, L4-5
and L5-S1 but he did not discuss causal relationship.
The reports of diagnostic testing submitted by appellant are insufficient to establish the
claim as they did not provide any opinion supporting that appellant had an L5-S1 condition as a
consequence of the accepted condition. The record also contains numerous reports from physical
therapists. However, health care providers such as physical therapists are not physicians under
the Act. Thus, their opinions on causal relationship do not constitute rationalized medical
opinions and have no weight or probative value.17
The Office medical adviser, in a report dated July 31, 2005, concluded that the condition
and procedures should not be authorized and explained that “there is no recognizable medical
condition affecting the L5-S1 disc based on the definitive myelogram with CAT scan follow up
performed on [February 23, 2004] or the lumbar MRI scan dated [October 23, 2003].” He noted
that, while the June 21, 2005 discogram revealed low back pain at both L4-5 and L5-S1, he
advised that there was also a degenerative pattern at these levels. The Office medical adviser
explained that, despite normal findings at L4-5 in the earlier lumbar MRI scan, Dr. Greenfield
recommended percutaneous disc decompressions at L4-5 and L5-S1. Additionally, the Office
15

Kathy A. Kelley, 55 ECAB 207 (2004).

16

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
17

Jan A. White, 34 ECAB 515, 518 (1983).

7

medical adviser explained that, on July 11, 2005, Dr. Katta related that appellant walked into his
office without any gait deviation, and indicated that her straight leg raisings were negative
bilaterally, and that her lower and upper extremity strength was normal. He noted that the only
report tending to support a need for the procedure was the lumbar discography; however,
because the MRI scan and CT scan follow up did not demonstrate any abnormalities, he did not
recommend authorizing the two level lumbar percutaneous disc compression. Furthermore,
Dr. Katta explained that, in lumbar spine conditions, disc levels above an injured level could be
at an increased risk from wear and tear as a result of splinting and increased mobility needs at the
next higher level. The medical adviser explained that this would not apply in appellant’s case
where the claimed consequential injury was to a lower level where there would be substantially
fewer demands for movement.
In this case, there is insufficient medical evidence of record to establish a causal
relationship between appellant’s L5-S1 condition and request for percutaneous discectomy and
the accepted work-related incident. An award of compensation may not be based on appellant’s
belief of causal relationship.18 Neither the mere fact that a disease or condition manifests itself
during a period of employment nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish a causal relationship.19
The Board, therefore, finds that the evidence of record is insufficient to discharge her burden of
establishing that her consequential L5-S1 condition and need for surgery were consequential
injuries of the accepted condition of lumbar strain and lumbar microdisc surgery at L4-5.20
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her L5-S1
condition and the requested authorization for an L5 and L5-S1 percutaneous discectomy was a
consequence of her accepted conditions.

18

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

19

Id.

20

On appeal appellant submitted additional medical evidence. However, the Board may not consider new
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 18, 2006 and October 20 and August 8, 2005 are affirmed.
Issued: March 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9