United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 16-0408
Issued: May 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 29, 2015 appellant, through counsel, filed a timely appeal from an
August 7, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his left knee and
shoulder conditions are causally related to the accepted February 23, 2013 employment incident.
FACTUAL HISTORY
On February 27, 2013 appellant, then a 50-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 23, 2013 he injured his left knee when he slipped

1

5 U.S.C. § 8101 et seq.

on ice while delivering mail.
February 27, 2013.

He stopped work on February 24, 2013 and returned on

On February 23, 2013 appellant was examined in the emergency room by Dr. Benjamin
Kartman, Board-certified in emergency medicine, and released to return to work. In a
February 23, 2013 attending physician’s report (Form CA-20), Dr. Kartman noted a date of
injury of February 22, 2013 and related appellant’s complaints of knee pain. He provided
examination findings of tenderness on spasm and diagnosed knee pain. Dr. Kartman checked a
box marked “yes” in response to a question as to whether appellant’s condition was caused or
aggravated by the described activity of falling on ice. He authorized appellant to return to full
duty on February 29, 2013.
Appellant also received a March 13, 2013 medical treatment report from James G.
Castillo, a physician assistant, who related appellant’s complaints of left knee and left shoulder
pain and decreased range of motion. Mr. Castillo noted that appellant worked as a mail carrier
and that on February 23, 2013 he slipped and fell on some ice when delivering mail. He
diagnosed aggravated left knee degenerative joint disease and left shoulder pain with decreased
range of motion. Mr. Castillo recommended that appellant undergo a magnetic resonance
imaging (MRI) scan examination of the left shoulder to further evaluate his rotator cuff. He
provided an attending physician’s and duty status report (Form CA-17) which described the
February 23, 2013 employment incident and diagnosed rotator cuff tendinitis. Mr. Castillo
authorized appellant to resume regular duty on March 27, 2013.
In a March 13, 2013 letter, Dr. John J. Sharkey, a Board-certified orthopedic surgeon,
noted that he examined appellant and requested that OWCP add a left shoulder injury to his
claim file. He also requested authorization for a left shoulder MRI scan examination to evaluate
a possible rotator cuff tear.
By letter dated August 6, 2013, OWCP informed appellant that his claim was initially
accepted as a minor injury but was being reopened as medical expenses had exceeded $1,500.00.
It requested additional factual evidence to demonstrate that the February 23, 2013 incident
occurred as alleged and medical evidence to establish that appellant sustained a diagnosed
condition causally related to the alleged work incident. Appellant was afforded 30 days to
submit this additional evidence.
On August 8, 2013 appellant underwent the recommended MRI scan of his left shoulder
by Dr. Nidhi Gupta, a Board-certified diagnostic radiologist. He related appellant’s complaints
of left shoulder pain and decreased range of motion after a February 23, 2013 fall on his
shoulder. Dr. Gupta observed mild tendinosis of the supraspinatus tendon with bursal-sided
fraying and mild tendinosis of the biceps tendon at the groove entrance. Dr. Gupta also reported
acromioclavicular (AC) joint degenerative changes manifested by joint space narrowing and
prominent inferior osteophyte formation. He also found a questionable small tear of the
anterosuperior labrum.
Dr. Sharkey continued to treat appellant and related in an August 15, 2013 report that
appellant complained of constant pain in his left shoulder and knee. He noted that appellant was
initially evaluated in his office in March after he fell down on his left side at work on

2

February 23, 2013. Upon examination, Dr. Sharkey observed full painless range of motion of
the right shoulder with laterally full painless range of motion the elbows, wrist, and hand. He
noted pain with abduction to 120 degrees and increasing pain with rotator cuff resistance testing,
but no complaints of pain at the AC joint with palpation or with cross body arm abduction and no
evidence of infraspinatus/supraspinatus atrophy. Dr. Sharkey related that an August 8, 2013
MRI scan of the left shoulder revealed evidence of some supraspinatus tendinosis and bicipital
tendinosis. He recommended a subacromial injection.
In a decision dated September 10, 2013, OWCP denied appellant’s claim. It accepted
that the February 23, 2013 incident occurred as alleged and that he sustained left knee and
shoulder conditions, but denied his claim finding insufficient medical evidence to establish that
his conditions resulted from the accepted incident.
On September 12, 2013 OWCP received appellant’s request, through counsel, for a
telephonic hearing, which was held before an OWCP hearing representative on March 21, 2014.
Appellant explained that he had worked as a city carrier since 2004 and had sustained one
previous injury in 2005 when a dog bit him. He related that on February 23, 2013 he was
delivering mail in the winter time when he slipped while climbing up some stairs and fell onto
his left shoulder and leg. Appellant reported the incident to his supervisor but was able to finish
his route. After he completed his route, he sought treatment at the emergency room and was
advised to schedule an appointment with Dr. Sharkey. Counsel related that Dr. Sharkey
diagnosed appellant with rotator cuff tendinitis and tear and aggravation of a preexisting left
knee degenerative joint disease. He alleged that there was no evidence on file contrary to what
Dr. Sharkey reported. Counsel stated that he would ask Dr. Sharkey to write another report and
requested that the record be held open for 30 days. Nothing further was received.
By decision dated June 10, 2014, the OWCP hearing representative affirmed OWCP’s
September 10, 2013 denial decision.
Following the June 10, 2014 decision, appellant submitted an April 27, 2015 x-ray report
of the left knee by Dr. Elaine Alexander, a Board-certified internist, who noted minimal
degenerative changes and a trace amount of fluid within the joint. Dr. Alexander reported that
appellant’s proximal infrapatellar tendon was not well visualized concerning a tear or tendinosis.
On May 11, 2015 OWCP received appellant’s request, through counsel, for
reconsideration. He noted that he was submitting a May 6, 2015 report by Dr. Sharkey.
In a May 6, 2015 report, Dr. Sharkey indicated that in February 2013 appellant fell down
at work and complained of left shoulder pain. He noted examination findings of full painless
range of motion of the right shoulder and provided range of motion findings for appellant’s left
shoulder. Dr. Sharkey related that an August 8, 2013 MRI scan of the left shoulder revealed
supraspinatus tendinosis/bicipital tendinosis with no rotator cuff tear.
He diagnosed
supraspinatus tendinosis and bicipital tendinosis. Dr. Sharkey indicated that the facts of the
injury were the direct and proximate cause of the diagnosis. He explained that while there may
be other causes for this medical problem, one of the causes was clearly the work activities
previously described. Appellant also resubmitted Dr. Sharkey’s August 15, 2013 report.

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In a decision dated August 7, 2015, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged but fail to show that his disability or condition relates to the employment
incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.11

2

Id.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

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

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
Appellant alleged that on February 23, 2013 he sustained injuries to his left knee and
shoulder when he slipped on ice while delivering mail. He stopped work and returned on
February 27, 2013. OWCP accepted that the February 23, 2013 incident occurred as alleged and
that appellant was diagnosed with left knee and shoulder conditions, but denied his claim finding
insufficient medical evidence to establish that his conditions were causally related to the
employment incident.
Appellant was initially examined in the emergency room by Dr. Kartman. In a
February 23, 2013 attending physician’s report, he noted a date of injury of February 22, 2013
and examination findings of tenderness on spasm of the left knee. The Board notes that
Dr. Kartman related an incorrect date of injury. Dr. Kartman diagnosed knee pain but did not
mention left shoulder pain in his diagnosis. He checked a box marked “yes” that appellant’s
condition was caused or aggravated by the described activity. The Board finds that
Dr. Kartman’s report is insufficient to establish causal relationship. Dr. Kartman did not provide
a medical diagnosis for appellant’s condition as pain is a description of a symptom and not
considered a compensable medical diagnosis.12 He also did not provide a rationalized opinion on
the cause of appellant’s knee pain as he only checked a box marked “yes” regarding causal
relationship. The Board has held that when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without explanation or rationale, that opinion is of
diminished probative value and is insufficient to establish a claim.13 For these reasons, the
Board finds that Dr. Kartman’s report is insufficient to establish appellant’s claim.
Dr. Sharkey also treated appellant and provided reports dated March 13, 2013 to
May 6, 2015. He related that he examined appellant for complaints of constant pain in his left
shoulder and knee after a February 23, 2013 fall at work. Dr. Sharkey conducted an examination
and observed pain with abduction to 120 degrees and increasing pain with rotator cuff resistance
testing in the left shoulder. In an August 15, 2013 report, he noted that a left shoulder MRI scan
showed evidence of some supraspinatus tendinosis and bicipital tendinosis. Dr. Sharkey
diagnosed supraspinatus tendinosis and biceps tendinosis. In a May 6, 2015 report, he opined
that the facts of the injury were the “direct and proximate cause” of the diagnosis. The Board
notes that Dr. Sharkey provided an accurate description of the February 23, 2013 employment
incident and findings on examination. He diagnosed supraspinatus tendinosis and biceps
tendinosis and opined that these conditions were caused by the described employment incident.
The Board finds, however, that Dr. Sharkey did not provide any medical rationale or explanation
for how the February 23, 2013 work incident of slipping on ice while delivering mail caused or
contributed to appellant’s left shoulder condition. The Board has found that medical reports that
state a conclusion but fails to offer any rationalized medical explanation regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.14 His

12

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

13

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

14

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

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opinion, therefore, is insufficient to establish that appellant’s left knee and shoulder conditions
were causally related to the February 23, 2013 employment incident.
The additional diagnostic reports are likewise insufficient to establish appellant’s claim.
In an August 8, 2013 MRI scan of the left shoulder, Dr. Gupta diagnosed mild tendinosis of the
supraspinatus tendon and biceps tendon and AC joint degenerative changes. An April 27, 2015
x-ray examination of the left knee by Dr. Alexander also revealed minimal degenerative changes
and a trace amount of fluid within the joint. Although Drs. Gupta and Alexander provided
medical diagnoses, they did not describe the cause of these conditions. The Board has found that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.15 These reports, therefore, are
insufficient to establish appellant’s claim.
Appellant was also examined by Mr. Castillo, a physician assistant, on March 13, 2013.
Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by State law. Because physician assistants are not
considered “physicians” as defined by FECA, their medical opinions regarding diagnosis and
causal relationship are of no probative medical value.16 For this reason, Mr. Castillo’s March 13,
2013 report is of no probative value and fails to establish appellant’s claim.
On appeal, appellant’s counsel alleges that OWCP was biased toward a denial decision.
The record demonstrates, however, that OWCP properly considered all the evidence and found,
as stated above, that the medical evidence submitted was insufficient to establish that his left
knee and shoulder conditions were causally related to the February 23, 2013 employment
incident. Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.17 Because appellant has
failed to provide such rationalized medical opinion evidence in this case, the Board finds that
appellant did not 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 did not meet his burden of proof to establish that his left
knee and shoulder conditions were causally related to the accepted February 23, 2013
employment incident.

15

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

16

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

17

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the August 7, 2015 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 16-1778
Issued: August 24, 2017

Case Submitted on the Record

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

JURISDICTION
On September 7, 2016 appellant filed a timely appeal from a July 26, 2016 merit decision
and an August 19, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her
diagnosed bilateral knee condition was causally related to factors of her federal employment; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional medical evidence with her appeal that was not part of the record when OWCP
issued its August 19, 2016 decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that
was before OWCP at the time of its final decision. Therefore, the Board is precluded from reviewing this evidence
for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 5, 2016 appellant, a 53-year-old rural carrier, filed an occupational disease claim
(Form CA-2) alleging that she developed bilateral hip and knee conditions in the performance of
duty on or about December 23, 2015. She attributed her conditions to excessive standing, bending,
stooping, and going up/down steps. Appellant also indicated that she sat for extended periods and
that her job required repetitive rising from a seated position. She stated that over time the
identified employment activities aggravated her bilateral knee osteoarthritis and bilateral hip
bursitis.
In a separate, undated statement, appellant asserted that her job required repetitive activities
such as retrieving letters, tubs, trays, and mail flats from the mail distribution case in her work area
and moving the various items to the sorting area. The items reportedly weighed from a couple of
ounces to 10 or more pounds. Appellant also reported having had to occasionally lift sacks of mail
from the floor and the surrounding area. She indicated that she was also required to push mail
hampers and sort parcels, lifting them from the hampers. On a daily basis, appellant made three or
four trips pushing a hamper on uneven pavement to the parking lot to load parcels into her mail
truck. In addition, she noted that while driving her mail vehicle she had to constantly brake and
apply her foot to the gas pedal. Once appellant arrived on a street, she had to deliver mail to
mailboxes, walk up numerous steps at houses, and deliver mail to apartment buildings with as
many as three flights of stairs. She asserted that, over time, these activities aggravated her bilateral
hip and knee conditions.
On June 22, 2016 OWCP advised appellant that it required additional factual information,
as well as medical evidence in support of her claim. It requested that she submit a
comprehensive report from a treating physician describing her symptoms and the medical
reasons for her conditions, with an opinion as to whether her claimed conditions were causally
related to her federal employment. OWCP afforded appellant 30 days to submit this evidence.
In a June 17, 2016 report, Dr. Akbar Nawab, a Board-certified orthopedic surgeon, advised
that appellant had bilateral knee pain. He related that she continued to have severe, worsening pain
around the anterior compartments of both knees. Dr. Nawab reported that appellant experienced
difficulty getting up from a chair. He also noted that she had recently tried to modify her activities
and utilized some off-the-shelf bracing.
Dr. Nawab diagnosed bilateral patellofemoral
osteoarthritis. He advised that he would treat appellant with injections for now but that, given the
severity of arthritis in her patellofemoral joints, he believed that the only option that would give her
significant pain relief was patellofemoral joint replacements. Dr. Nawab restricted appellant to
working on level surfaces, with no squatting, crawling, stair climbing, or lifting in excess of 20
pounds.
Appellant also submitted a June 17, 2016 attending physician’s report (Form CA-20)
from Dr. Nawab who diagnosed preexisting osteoarthritis that was “[a]ggravated by work.”
OWCP received a June 29, 2016 supplemental statement from appellant outlining the
duties she believed caused or aggravated her bilateral hip and knee conditions. The description
was consistent with her previously submitted statement. Additionally, appellant indicated that
she did not engage in any physical activities outside of her federal employment. She explained

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that her conditions would not allow her to perform her job duties, let alone any social or
recreational activities.
By decision dated July 26, 2016, OWCP found that appellant failed to meet her burden of
proof to establish that her claimed condition was causally related to the accepted employment
factors. It noted that Dr. Nawab’s reports were insufficient to establish that the diagnosed knee
osteoarthritis was causally related to the accepted employment factors.
On August 12, 2016 appellant requested reconsideration. She resubmitted Dr. Nawab’s
June 17, 2016 reports, as well as her previous narrative statement. OWCP also received a rural
carrier position description.
In an August 19, 2016 decision, OWCP denied appellant’s application for
reconsideration. It noted that the medical evidence appellant submitted was cumulative, and that
the position description was irrelevant to the medical issue of causal relationship. Consequently,
OWCP found that there was insufficient evidence to warrant further review of its July 26, 2016
decision.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors.5
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to submit medical evidence containing a
rationalized, probative opinion relating her claimed bilateral knee osteoarthritis to factors of her
3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
5

Victor J. Woodhams, id.

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employment. For this reason, she has not met her burden of proof to establish her claim that this
condition was sustained in the performance of duty.
Dr. Nawab’s June 17, 2016 narrative report noted appellant’s complaints of left knee pain
and presented a diagnosis of bilateral patellofemoral osteoarthritis. He administered injections,
but advised that appellant would probably require patellofemoral joint replacements, as this was
the only option that would provide significant pain relief. Dr. Nawab restricted appellant to
performing work on level surfaces, with no squatting, crawling, stair climbing, or lifting exceeding
20 pounds. He did not specifically address the cause of appellant’s bilateral knee condition. As
such, Dr. Nawab’s report is of limited probative value and is insufficient to establish his claim.6
Dr. Nawab’s June 17, 2016 attending physician’s report (Form CA-20) did not provide a
probative, rationalized medical opinion that appellant’s osteoarthritis was causally related to
employment factors. He indicated that appellant’s condition was “[a]ggravated by work.”
However, Dr. Nawab did not explain how appellant’s specific rural carrier duties aggravated her
osteoarthritis. A physician’s opinion on causal relationship is of limited probative value when it
does not contain any medical rationale explaining how or why the diagnosed condition is
employment related.7 Dr. Nawab did not describe appellant’s job duties or explain the medical
process through which such duties would have been competent to either cause or aggravate
appellant’s osteoarthritis. As such, his attending physician’s report (Form CA-20) was
insufficient to establish that appellant’s claimed bilateral knee condition was causally related to
her employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.10 A timely application for reconsideration, including all supporting documents, must set
6

See M.W., Docket No. 17-0097 (issued April 11, 2017) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
7

William C. Thomas, 45 ECAB 591 (1994).

8

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

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

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forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely application for reconsideration does not meet at least
one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12
ANALYSIS -- ISSUE 2
Appellant’s August 12, 2016 request for reconsideration was timely filed. However, she
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Additionally, appellant did not advance any relevant legal arguments not previously
considered by OWCP. The Board finds that appellant is not entitled to a review of the merits
based on the first and second requirements under section 10.606(b)(3).13
Appellant also failed to submit any relevant and pertinent new evidence with her
August 12, 2016 request for reconsideration. The issue on reconsideration was whether there
was causal relationship between appellant’s bilateral knee osteoarthritis and her accepted rural
carrier duties. Causal relationship is a medical question that generally requires rationalized
medical opinion evidence to resolve the issue.14 The rural carrier position description therefore
cannot suffice for purposes establishing causal relationship as it does not constitute medical
evidence. Any medical evidence which OWCP relies upon to resolve an issue must be in writing
and signed by a qualified physician.15 Lastly, appellant resubmitted Dr. Nawab’s June 17, 2016
reports, which OWCP had previously found deficient. Providing additional evidence that either
repeats or duplicates information already of record does not constitute a basis for reopening a
claim.16 Because appellant did not provide any probative relevant and pertinent new evidence,
she is not entitled to a review of the merits based on the third requirement under section
10.606(b)(3).17 Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
diagnosed bilateral knee condition was causally related to accepted factors of her federal

11

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(a), (b).

13

20 C.F.R. § 10.606(b)(3)(i) and (ii).

14

See Robert G. Morris, 48 ECAB 238 (1996).

15

James A. Long, 40 ECAB 538 (1989).

16

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

17

20 C.F.R. § 10.606(b)(3)(iii).

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employment. The Board further finds that OWCP properly denied appellant’s request for
reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the August 19 and July 26, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 24, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Arlington Heights, IL, Employer
__________________________________________

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

Docket No. 07-1552
Issued: August 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 21, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 12, 2007 merit decision denying his claim for employmentrelated disability from June 25 to July 18, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), 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 total
disability for the period June 25 to July 18, 2005 due to his May 9, 2005 employment injury.
FACTUAL HISTORY
In mid 1981, the Office accepted that appellant, then a 33-year-old safety specialist,
sustained an ulcer of the plantar aspect of his left fifth metatarsal due to the extensive walking

required by his job.1 On September 18, 1981 appellant’s left leg was amputated below the knee.
The procedure was accepted as related to his employment injury.
The Office accepted that on May 9, 2005 appellant sustained contusions and abrasions to
his left residual leg due to a fall on that date.2 He stopped work on June 25, 2005 and claimed
that he sustained total disability for the period June 25 to July 18, 2005, due to his May 9, 2005
employment injury.
In a May 12, 2005 note, Dr. Robert W. Trauscht, an attending Board-certified family
practitioner, stated that appellant should not work until “re-eval[uation] of prosthesis and
med[ications].” In a June 3, 2005 form report, he listed the date of injury as May 9, 2005 and
indicated that swelling of appellant’s residual left leg due to that injury “aggravated fit of
prosthesis.” Dr. Trauscht indicated that appellant was disabled from May 9, 2005 until an
unknown period. In a June 7, 2005 report, Dr. Todd Kuiken, an attending Board-certified
physical medicine and rehabilitation physician, stated that Dopplers testing showed that appellant
had deep vein thrombosis in his residual left leg, which came up into the popliteal fossa. He
noted that appellant reported that the edema in his residual leg had decreased but he could not get
into his prosthesis.3
In a June 20, 2005 report, Dr. Uma Shah, an attending Board-certified physical medicine
and rehabilitation physician, described the May 9, 2005 injury and noted appellant’s complaints
of swelling and pain in his residual left leg. She diagnosed chronic left residual leg pain which
was worsening, deep vein thrombosis and left osteomyelitis. In a July 6, 2005 report, Dr. Peter
Orris, an attending Board-certified internist, noted that he was reviewing appellant’s records, a
process expected to take two weeks and indicated that he should not return to work until this
evaluation was complete. In a July 18, 2005 note, Dr. Shah stated that appellant was undergoing
treatment for stump pain which was aggravated by a fall on May 9, 2005. She indicated that he
could return to sedentary duty.
In a July 19, 2005 note, Dr. Trauscht noted that appellant was undergoing treatment for
stump pain and deep vein thrombosis, which was aggravated by a fall on May 9, 2005. He
indicated that appellant could return to sedentary duty.4 In another July 19, 2005 note,
1

The claim was accepted under file number 50-0012145. Appellant had preexisting service-related injuries to his
left leg, including gunshot wounds to the left thigh and a predisposition to develop neurotrophic ulcers of the left
foot. It appears that he was not wearing his prosthesis at the time of his May 9, 2005 fall and that he fell on the end
of his residual left leg.
2

The claim was accepted under file numbered 11-2028989 but file number 50-0012145 now serves as the master
file for appellant’s case. After the initial acceptance of his claim, appellant began to work as an audio-visual
production officer for the employing establishment, a position which required extensive walking. Since May 2003,
appellant worked in a limited-duty position as an audio-visual production officer. He was not required to walk more
than 100 feet or stand for more than 30 minutes per day. Appellant tended to use a nonmotorized wheelchair to
move around his office. He also was able to ambulate on crutches for shorter distances.
3

The record contains the findings of a May 27, 2005 venous duplex scan showing that appellant had deep vein
thrombosis in the popliteal vein of his left residual leg. Appellant was treated with Lovenox and Coumadin
medications.
4

Appellant returned to limited-duty work for the employing establishment on July 19, 2005.

2

Dr. Trauscht stated that appellant was seen at his direction on June 6, 2005 by Mary Muellner, a
certified physician’s assistant and he was instructed to remain off work until he was evaluated by
physicians at the Department of Veterans Affairs. He stated, “I concurred with this
recommendation completely.” In an August 16, 2005 note, Dr. Orris noted that appellant
sustained a fall on May 9, 2005 and stated, “At this time he injured his stump again and has
subsequently had increased difficulty wearing his prosthesis due to swelling and pain. This
condition was diagnosed recently to include a deep vein thrombosis in the area.”
In March 2006, the Office referred appellant to Dr. Martin Saltzman, a Board-certified
orthopedic surgeon, for an impartial medical examination. It indicated that there was a conflict
in the medical evidence between Dr. Kuiken and Dr. Norman Aliga, a Board-certified physical
medicine and rehabilitation physician, regarding whether he had employment-related complex
regional pain syndrome prior to May 9, 2005 and whether his employment-related condition
necessitated participation in a pain management program. In a May 17, 2006 report,
Dr. Saltzman stated that appellant had complaints consistent with complex regional pain
syndrome prior to May 9, 2005. He stated that, after May 9, 2005, appellant could not perform
the regular duties of his audio-visual production specialist position.
In a May 25, 2006 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that he sustained total disability for the
period June 25 to July 18, 2005 due to his May 9, 2005 employment injury.5 In a September 14,
2006 decision, an Office hearing representative set aside the Office’s May 25, 2006 denying
appellant’s claim for employment-related disability from June 25 to July 18, 2005. He indicated
that an additional report should be obtained from Dr. Saltzman to clarify whether appellant had
total disability for the period June 25 to July 18, 2005 due to his May 9, 2005 employment
injury.
In an August 21, 2006 report, Dr. Saltzman stated that appellant fell directly on the end of
his left residual leg on May 9, 2005 and noted that “subsequent to May 9, 2005 he has been
unable to perform any type of work because of the aggravation of the complex regional pain
syndrome condition that was present prior to the May 9, 2005 injury.” He concluded that
appellant could not perform the regular duties of his audio-visual production specialist position
but that he was able to “continue sedentary work as he had performed prior to the May 9, 2005
work-related injury.”
In a February 12, 2007 decision, the Office denied appellant’s claim that he sustained
total disability for the period June 25 to July 18, 2005 due to his May 9, 2005 employment

5

In another May 25, 2006 decision, the Office denied appellant’s request for payment for a motorized wheelchair.
In a December 21, 2006 decision, an Office hearing representative affirmed the Office’s May 25, 2006 denying
appellant’s wheelchair request. Appellant has not appealed these decision to the Board and the matter is not
currently before the Board.

3

injury. It found that the opinion of Dr. Saltzman showed that appellant did not have such
employment-related disability for the period June 25 to July 18, 2005.6
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act7 has
the burden of establishing the essential elements of his claim.8 The claimant has the burden of
establishing by the weight of reliable, probative and substantial evidence that the condition for
which compensation is sought is causally related to a specific employment incident or to specific
conditions of the employment. As part of this burden, the claimant must present rationalized
medical opinion evidence, based upon a complete and accurate factual and medical background,
establishing causal relationship.9 However, it is well established that proceedings under the Act
are not adversarial in nature and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.10
ANALYSIS
In mid 1981, the Office accepted that appellant sustained an ulcer of the plantar aspect of
his left fifth metatarsal due to the extensive walking required by his job. On September 18, 1981
appellant’s left leg was amputated below the knee, a procedure which was accepted as related to
his employment injury. The Office accepted that on May 9, 2005 appellant sustained contusions
and abrasions of his left residual leg due to a fall on that date.11 He stopped work on June 25,
2005 and claimed that he sustained total disability for the period June 25 to July 18, 2005 due to
his May 9, 2005 employment injury.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that appellant had disability due to his
May 9, 2005 employment injury during the claimed period and are not contradicted by any
substantial medical or factual evidence of record. Therefore, while the reports are not sufficient
to meet appellant’s burden of proof to establish his claim, they raise an uncontroverted inference
6

The Office referred to Dr. Saltzman as an impartial medical specialist but he actually served as an Office referral
physician regarding the main issue of the present case. At the time of referral to Dr. Saltzman, there was no conflict
in the medical evidence regarding whether appellant sustained total disability for the period June 25 to July 18, 2005
due to his May 9, 2005 employment injury. Section 8123(a) of the Act provides in pertinent part: “If there is
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” 5 U.S.C. § 8123(a).
7

5 U.S.C. §§ 8101-8193.

8

Ruthie Evans, 41 ECAB 416, 423-24 (1990); Donald R. Vanlehn, 40 ECAB 1237, 1238 (1989).

9

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

11

After the initial acceptance of his claim, appellant began to work as an audio-visual production officer for the
employing establishment, a position which required extensive walking. Since May 2003, appellant worked in a
limited-duty position as an audio-visual production officer. He was not required to walk more than 100 feet or stand
for more than 30 minutes per day.

4

between appellant’s May 9, 2005 employment injury and the claimed period of disability and are
sufficient to require the Office to further develop the medical evidence and the case record.12
In several reports, Dr. Trauscht, an attending Board-certified family practitioner,
indicated that appellant had total disability due to his May 9, 2005 employment injury for all or
part of period between May 9 and July 18, 2005. In a June 3, 2005 form report, he listed the date
of injury as May 9, 2005 and indicated that swelling of appellant’s residual left leg due to that
injury “aggravated fit of prosthesis.” Dr. Trauscht stated that appellant was disabled from
May 9, 2005 until an unknown period. In a July 19, 2005 note, he noted that appellant was
undergoing treatment for stump pain and deep vein thrombosis, which was aggravated by a fall
on May 9, 2005. Dr. Trauscht indicated that appellant could return to sedentary duty. In another
July 19, 2005 note, he stated that appellant was seen at his direction on June 6, 2005 by
Ms. Muellner, a certified physician’s assistant and he was instructed to remain off work until he
was evaluated by physicians at the Department of Veterans Affairs. Appellant stated, “I
concurred with this recommendation completely.”
The record also contains May 17 and August 21, 2006 reports of Dr. Saltzman, a Boardcertified orthopedic surgeon. The Office relied on Dr. Saltzman’s opinion in denying appellant’s
claim but he did not provide an opinion regarding whether appellant had disability between
June 25 and July 18, 2005 due to his May 9, 2005 employment injury. Rather, Dr. Saltzman
only indicated that appellant could perform limited-duty work at the time of his examination in
mid 2006.
Accordingly, the case will be remanded to the Office for further evidentiary development
regarding the issue of whether appellant had disability between June 25 and July 18, 2005 due to
his May 9, 2005 employment injury. The Office should prepare a statement of accepted facts
and obtain a medical opinion on this matter. After such development of the case record as the
Office deems necessary, an appropriate decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he sustained total disability for the period June 25 to
July 18, 2005 due to his May 9, 2005 employment injury. The case is remanded to the Office for
further development to be followed by the issuance of an appropriate decision.

12

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 12, 2007 decision is set aside and the case remanded to the Office for further
proceedings consistent with the decision of the Board.
Issued: August 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1569
Issued: January 10, 2022

Case Submitted on the Record

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

On August 24, 2020 appellant filed a timely appeal from a March 18, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-1569.
On December 9, 2014 appellant, then a 40-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on December 8, 2014, he sustained left shoulder strain when he picked
up a flat tub with both hands that caught on the bottom of a postal container while in the
performance of duty. OWCP initially accepted appellant’s claim for left upper arm
acromioclavicular and shoulder strain. It subsequently expanded the acceptance of the claim to
include mid-cervical region disc disorder with radiculopathy, left articular cartilage disorder, and
sprain of the right shoulder rotator cuff joint.
On September 17, 2015 appellant underwent an OWCP authorized left shoulder
arthroscopy with superior labral anteroposterior repair. On June 8, 2017 he underwent an
authorized left shoulder open biceps tenodesis and left shoulder arthroscopy with limited
debridement. On October 25, 2018 appellant underwent an authorized anterior cervical
discectomy and fusion.
On September 19, 2018 appellant filed a claim for compensation (Form CA-7) for a
schedule award.

In a report dated April 3, 2019, Dr. Anthony Hicks, a preventative medicine specialist,
indicated that appellant was not at maximum medical improvement (MMI) regarding his cervical
fusion, but that he was at MMI regarding his left shoulder. He found that appellant had 13 percent
permanent impairment of the left shoulder pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1
By decision dated May 31, 2019, OWCP denied appellant’s claim for a schedule award,
finding that he was not at MMI.
In a report dated May 8, 2019, Dr. John Ellis, a Board-certified family practitioner,
examined appellant in order to provide an evaluation of his percentage of impairment. Referring
to the A.M.A., Guides, he calculated using the diagnosis-based impairment (DBI) method that
appellant had 24 percent permanent impairment of the right upper extremity and 28 percent
permanent impairment of the left upper extremity. He noted that appellant’s date of MMI was
May 8, 2019.
On July 9, 2019 appellant again filed a Form CA-7 claim for a schedule award.
In a report dated July 17, 2019, Dr. Hicks noted a diagnosis of left shoulder arthroscopic
superior labral anteroposterior repair completed on September 17, 2015. Based upon this
diagnosis and referencing the A.M.A., Guides, he calculated 13 percent permanent impairment of
the left upper extremity using the DBI method. Dr. Hicks noted that appellant was at MMI
regarding his left shoulder injury, but was not at MMI regarding his cervical fusion.
On July 30, 2019 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Jovito Estaris, a physician Board-certified in occupational medicine serving as an
OWCP district medical adviser (DMA), and requested that he evaluate appellant’s permanent
impairment under the sixth edition of the A.M.A., Guides. It specifically requested that Dr. Estaris
review and comment upon the July 17, 2019 report of Dr. Hicks.
In a report dated August 8, 2019, Dr. Estaris reviewed the medical record, including the
July 17, 2019 report of Dr. Hicks. Referencing the sixth edition of the A.M.A., Guides, he noted
that while Dr. Hicks had provided an impairment rating of 13 percent for the left upper extremity
for labral tears, the highest impairment rating for the relevant grid was 5 percent. Dr. Estaris
further noted that Dr. Hicks had stated that appellant was at MMI regarding his left shoulder injury,
but not at MMI regarding his cervical fusion. He recommended that an impartial medical
evaluation be performed to obtain an impairment rating after MMI was reached and stated that a
current electrodiagnostic study of the upper extremities should be provided.
In a letter dated September 4, 2019, OWCP informed appellant that it had determined a
conflict in the medical evidence regarding his impairment rating existed in his case and referred
him to Dr. James Hood, a Board-certified orthopedic surgeon, for a referee examination. The
SOAF provided to Dr. Hood did not note acceptance of appellant’s right shoulder condition.
In a report dated October 2, 2019, Dr. Hood, as the impartial medical examiner (IME),
referenced the sixth edition of the A.M.A., Guides, and calculated that appellant had 12 percent
1

A.M.A., Guides (6 th ed. 2009).

2

permanent impairment of the left upper extremity, 2 percent for ulnar neuropathy and 10 percent
for his shoulder conditions. He noted that appellant’s shoulder could not be rated under diagnostic
criteria, as appellant had consistent abnormal motion.
By decision dated October 28, 2019, OWCP granted appellant a schedule award for 12
percent impairment of the left upper extremity.
Appellant continued to submit duty status reports, progress reports, and other medical
documentation dated from November 7, 2019 through February 6, 2020.
On March 10, 2020 appellant requested reconsideration of OWCP’s October 28, 2019
schedule award decision. With his request, he submitted a statement dated February 6, 2020,
wherein he related his discussion with Dr. Hood regarding his left shoulder, right shoulder, and
cervical conditions.
OWCP also received a letter dated February 7, 2020 from Dr. Ellis, in which he discussed
appellant’s permanent impairment rating, specifically noting his disagreement with Dr. Hood’s
rating regarding appellant’s right shoulder condition and January 15, 2017 cervical EMG results.
It also received a note dated February 14, 2020 from Dr. Hicks wherein he also related his
disagreement with Dr. Hoods’s rating, noting his failure to consider appellant’s right shoulder
impairment and appellant’s cervical EMG results. OWCP received reports from Dr. Hicks
outlining appellant’s treatment history with the latest visit recorded on March 5, 2020.
By decision dated March 18, 2020, OWCP denied appellant’s reconsideration request. It
noted that the evidence reviewed in support of his reconsideration request was an impairment
rating from Dr. Hicks dated March 5, 2020, which OWCP found was an exact copy of his July 17,
2019 impairment rating.
The Board has duly considered the matter and finds that the case is not in posture for
decision. In the case of William A. Couch,2 the Board held that when adjudicating a claim OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. As detailed above, on reconsideration appellant submitted a
note dated February 14, 2020 from Dr. Hicks and a letter dated February 7, 2020 from Dr. Ellis,
as well as reports from Dr. Hicks outlining appellant’s treatment history with the latest visit
recorded on March 5, 2020. Following OWCP’s October 28, 2019 schedule award decision, but
prior to appellant’s reconsideration request, it also continued to receive medical evidence from
November 7, 2019 through February 6, 2020. OWCP, however, did not review this evidence in
its March 18, 2020 decision. It, thus, failed to follow its procedures by not considering all of the
relevant evidence of record.3

2

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
3
OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 4 On
remand, following other such further development as deemed necessary, OWCP shall issue an
appropriate decision.
IT IS HEREBY ORDERED THAT the March 18, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: January 10, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, SOUTH SOUND
DISTRIBUTION CENTER, Fife, WA, Employer
__________________________________________

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

Docket No. 10-15
Issued: July 15, 2010

Case Submitted on the Record

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

JURISDICTION
On September 30, 2009 appellant filed a timely appeal from a November 5, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that he did not establish a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability or a recurrence of a
medical condition on January 18, 2008 causally related to his February 24, 2006 employment
injury.
FACTUAL HISTORY
On February 24, 2006 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim alleging that on that date he injured his back, neck and right knee when he tried to sit down
on a chair that had been moved. He stopped work on February 24, 2006 and returned to work on
February 28, 2006. In a duty status report dated March 1, 2006, Dr. James H. Nelson, Board-

certified in preventive medicine, listed findings of a resolved cervical back sprain, diagnosed a
back contusion and released appellant to resume his regular employment.
On May 7, 2008 appellant filed a recurrence of disability claim due to his February 24,
2006 employment injury. He stopped work on January 18, 2008. Appellant noted that he
performed the work duties within his bid position after his employment injury. His physician
informed him on March 19, 2007 that his disabling pain was the result of striking his right
sacroiliac joint on February 24, 2006. The employing establishment advised that appellant began
performing light duty on March 31, 2007.
On May 14, 2008 the Office advised appellant that it had originally processed his case as
an uncontroverted, no time lost from work case without considering it on the merits. It accepted
his claim for a neck sprain and contusions of the face, scalp and neck. The Office noted that
appellant’s physician released him to work on March 1, 2006 without restrictions and that his
case was administratively closed as he obtained no further medical treatment.
On April 1, 2008 Dr. Charles S. Paxson, a Board-certified internist, requested an
extension of appellant’s limited-duty work pending further evaluation. He referred to a May 14,
2007 duty status report for work restrictions.1 Appellant also submitted treatment notes from the
Department of Veterans Affairs predating his alleged recurrence of disability.2
By decision dated July 9, 2008, the Office found that appellant did not establish an
employment-related recurrence of disability. It found that he had submitted medical reports
regarding his treatment through the Department of Veterans Affairs but this evidence failed to
address whether he sustained a recurrence of disability due to his February 24, 2006 work injury.
In a form report dated June 12, 2008, received by the Office on August 25, 2008,
Dr. Paxson diagnosed a sacroiliac strain and indicated that the history of injury provided by
appellant corresponded to that on the form of a chair being moved while he was sitting down on
February 24, 2006. He listed as other disabling conditions peripheral neuropathy and carpal
tunnel syndrome and found that appellant could work full time with restrictions.
On August 18, 2008 Dr. Paxson found that appellant could work full time with
restrictions. On August 19, 2008 Dr. Bruce Buchanan, a Board-certified internist, referred to
progress reports dated March 12 and June 12, 2008 for information regarding appellant’s

1

In a duty status report dated May 14, 2007, Dr. Paxson diagnosed back and hip pain and checked “yes” that the
condition corresponded to the history of appellant trying to sit down on a chair that had been moved. He provided
work restrictions.
2

The treatment notes from the Department of Veterans Affairs dated after appellant’s release to resume his
regular employment do not address the causal relationship between any diagnosed condition and appellant’s
February 24, 2006 employment injury.

2

February 24, 2006 back injury.3 He noted that appellant also received chiropractic treatment
following his fall. Dr. Buchanan stated:
“During my most recent examination, June 12, 2008, I felt there were subtle signs
of trouble at the right sacroiliac joint, not recorded by me in March 2007.
However, over a number of recent examinations it is not possible to define a new
set of clinical findings after [appellant’s] accident date, nor can one conclude his
symptoms are suspect. Such a fall can jar/injure lumbar joints, discs or sacroiliac
joints with subtle changes in already limited function.
“I believe [appellant’s] claim for symptom worsening is valid, based on the injury
reported and suggest a physical capacities evaluation as an appropriate tool to
determine his future employability with the [employing establishment].”
On August 22, 2008 appellant requested reconsideration.
In a report dated August 29, 2008, Dr. Niriksha Malladi, a Board-certified physiatrist,
noted that appellant sought clarification regarding whether his right sacroiliac joint pain was due
to his February 24, 2006 fall at work and whether his carpal tunnel syndrome resulted from his
employment. She assessed him as having sacroiliac joint dysfunction and carpal tunnel
syndrome and noted that he was seeking a medical retirement.
In a November 5, 2008 decision, the Office denied modification of its July 9, 2008
decision. It noted that he currently had an occupational disease claim pending for pain in his
back and hip after his February 24, 2006 injury, assigned file number xxxxxx659. The Office
found that there was no evidence that appellant’s need for medical treatment or disability
beginning January 18, 2008 was causally related to the accepted work injury.
LEGAL PRECEDENT
When an appellant claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.4
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.5
Section 10.5(x) of the Office’s regulations provide in pertinent part:
“Recurrence of disability means an inability to work after an employee has
returned to work caused by a spontaneous change in a medical condition which
3

The March 12 and June 12, 2008 progress reports from Dr. Buchanan do not appear to be in the case record.

4

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999).

5

Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

3

had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”6
Section 10.5(y) of the Office’s regulations states:
“Recurrence of medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when
there is no accompanying work stoppage.”7
ANALYSIS
The Office accepted that appellant sustained a neck sprain and contusions of the face,
scalp and neck on February 24, 2006. Appellant stopped work that day and resumed work on
February 26, 2008. He performed his usual employment until March 31, 2007, when he
accepted a light-duty position. On May 7, 2008 appellant filed a recurrence of disability claim
contending that he stopped work on January 18, 2008 due to his February 24, 2006 work injury.
The medical evidence is insufficient to establish that appellant sustained a recurrence of
disability or a medical condition due to her accepted work injury. Regarding the recurrence of a
medical condition, as he is more than 90 days of release from initial medical care, it is his
responsibility to submit “an attending physician’s report which contains a description of the
objective findings and supports causal relationship between the claimant’s current condition and
the previously accepted work injury.”8
In a form report dated June 12, 2008, Dr. Paxson diagnosed a sacroiliac strain. He noted
that the history of injury provided by appellant corresponded to that on the form of a chair being
moved while he was sitting on February 24, 2006. The Board has held, however, that an opinion
on causal relationship which consists only of a physician checking “yes” to a medical form
question on whether the claimant’s condition was related to the history given is of little probative
value. Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship.9
On April 1, 2008 Dr. Paxson requested that appellant continue to work limited duty until
he was further evaluated. On August 18, 2008 he listed work restrictions. Dr. Paxson did not,
however, address causation, provide findings on examination or render a diagnosis. The issue of
whether a claimant’s disability is related to his or her employment is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and

6

20 C.F.R. § 10.5(x).

7

Id. at § 10.5(y).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (May 2003).

9

Cecelia M. Corley, 56 ECAB 662 (2005); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes”
in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).

4

supports that conclusion with sound medical reasoning.10 Additionally, findings on examination
are needed to support a physician’s opinion that an employee is disabled for work.11
On August 19, 2008 Dr. Buchanan related that during a June 12, 2008 examination, he
found symptoms of a right sacroiliac joint condition that were not present in March 2007. He
noted that a fall such as in appellant’s work injury could injure “lumbar joints, discs or sacroiliac
joints with subtle changes in already limited function.” Dr. Buchanan advised that appellant’s
symptoms had worsened and recommended a functional capacity evaluation to determine work
restrictions. His opinion that appellant’s work injury “could” result in an injury to the sacroiliac
joint is speculative in nature and general in nature; thus it is of limited probative value.12
Further, the Office did not accept any sacroiliac joint condition due to the February 24, 2006
work injury. Where appellant claims that, a condition not accepted or approved by the Office
was due to his employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury through the submission of rationalized medical
evidence.13 Dr. Buchanan did not provide any rationale for his opinion and thus his report is
insufficient to meet appellant’s burden of proof.14
In a report dated August 29, 2008, Dr. Malladi discussed appellant’s request that he
clarify whether the pain in his right sacroiliac joint was due to his February 24, 2006 work
injury. She noted that he sought a medical retirement and diagnosed sacroiliac joint dysfunction
and carpal tunnel syndrome. Dr. Malladi, however, did not address whether appellant’s right
sacroiliac joint pain was related to his February 24, 2006 work injury. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.15
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.16 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
10

Sandra D. Pruitt, 57 ECAB 126 (2005).

11

Laurie S. Swanson, 53 ECAB 517 (2002).

12

Kathy A. Kelley, 55 ECAB 206 (2004); Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty).
13

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); JaJa K. Asaramo, 55 ECAB 200,
204 (2004).
14

Mary E. Marshall, 56 ECAB 420 (2005); Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB
332 (2001).
15

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); Conrad Hightower, 54 ECAB 796 (2003).

16

George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

5

in support of his or her opinion.17 He failed to submit such evidence and therefore failed to
discharge his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability or a recurrence of a medical condition on January 18, 2008 causally related to his
February 24, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

Robert Broome, 55 ECAB 339 (2004).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1357
Issued: May 4, 2018

Case Submitted on the Record

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

JURISDICTION
On June 9, 2017 appellant, through counsel, filed a timely appeal from an April 10, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish left shoulder rotator
cuff syndrome and shoulder impingement, herniated nucleus pulposus (HNP) bulge of the cervical
1

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

5 U.S.C. § 8101 et seq.

intervertebral disc, and HNP bulge of the lumbar intervertebral disc causally related to the accepted
February 23, 2015 employment injury.
FACTUAL HISTORY
On February 23, 2015 appellant, then a 63-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on February 23, 2015, she sustained injuries to her back, right
elbow, and head as a result of slipping and falling in an icy parking lot at work. The claim form
did not indicate whether she stopped work. By decision dated July 9, 2015, OWCP accepted
appellant’s claim for right elbow and back contusions, lumbar sprain, and neck sprain.
Dr. Allen Nau, an emergency medicine physician, initially treated appellant at the
emergency room. In February 23, 2015 hospital records, he related that she slipped and fell on ice
while walking from the parking lot to a building at work and hit the back of her head. Upon
physical examination of appellant’s neck, Dr. Nau noted paravertebral tenderness and normal
range of motion. Examination of appellant’s lumbar spine showed full range of motion and mild
tenderness over the lumbar spine and sacrum. Dr. Nau indicated that examination of her right
upper extremity revealed swelling, tenderness, and ecchymosis to the right elbow and no
tenderness with full range of motion of the right shoulder, wrist, and hand. He noted diagnoses of
superficial head injury and contusion of the back and elbow.
Appellant also underwent a series of diagnostic examinations. In a February 23, 2015
lumbar and cervical spine x-ray examination report, Dr. Stanley Rich, a Board-certified diagnostic
radiologist, reported diffuse demineralization of the osseous structures and no evidence of acute
fracture in her lumbar spine. He also indicated a negative examination of the cervical spine. In a
February 23, 2015 brain computerized tomography scan report, Dr. Howard Rosenstein, a Boardcertified diagnostic radiologist, noted normal scan of the brain. In a February 23, 2015 right elbow
x-ray examination report, Dr. Peter Kouveliotes, a Board-certified diagnostic radiologist, related
normal radiographs of the right elbow.
In a February 27, 2015 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon,
indicated that appellant was examined for complaints of pain in the neck, bilateral shoulders, low
back, and right elbow following a slip and fall at work on February 23, 2015. He reported
diagnoses of pain in joint shoulder, rotator cuff syndrome, shoulder impingement, elbow
contusion, neck sprain, lumbar sprain, HNP bulge of the cervical intervertebral disc, and HNP
bulge of the lumbar intervertebral disc. Dr. Ani related that appellant should remain off work for
two weeks. He provided a duty status report (Form CA-17), which indicated that she could return
to work with restrictions on March 13, 2015.
In a March 4, 2015 left shoulder magnetic resonance imaging (MRI) scan report,
Dr. Timothy Howard, a Board-certified diagnostic radiologist, noted rotator cuff tendinosis and
sub deltoid bursitis, mild degenerative changes, partial thickness bursal surface fraying, and low
grade rotator cuff tear.
Dr. Ani continued to treat appellant. In March 13 and May 1, 2015 reports, he related her
complaints of mild-to-moderate neck and back pain and limited mobility with overhead lifting and
reaching. Dr. Ani reviewed appellant’s history and conducted an examination. He reported

2

restricted range of motion of the cervical spine. Examination of appellant’s lumbar spine revealed
tenderness in the paraspinous muscles and restricted range of motion with flexion and extension.
Dr. Ani reported mild pain with internal rotation of her bilateral shoulders and positive
impingement sign. He also noted tenderness in appellant’s right elbow. Dr. Ani diagnosed
bilateral shoulder pain, bilateral rotator cuff syndrome, left shoulder tendinopathy with partial tear,
bilateral shoulder impingement, elbow contusion, neck sprain, lumbar sprain, HNP bulge of the
cervical intervertebral disc, and HNP bulge of the lumbar intervertebral disc. He indicated in duty
status reports that appellant could work modified duty.
In an April 2, 2015 lumbar spine MRI scan report, Dr. Payam Torrei, a Board-certified
diagnostic and neuroradiologist, noted mild lumbar spondylosis and small central disc protrusion
at L5-S1. In a cervical spine MRI scan report, he observed several small cervical disc protrusions
without spinal stenosis or cord compression.
Appellant also underwent an April 15, 2015 right shoulder MRI scan by Dr. Salim
Banbahji, a Board-certified diagnostic radiologist. He reported a near complete full-thickness tear
of the supraspinatus tendon, infraspinatus and subscapularis tendinopathy without discrete highgrade tears, marked biceps long head tendinopathy with longitudinal tearing/cystic degeneration,
subacromial subdeltoid bursitis, and small soft tissue contusion in the posterior shoulder.
In a May 27, 2015 report, Dr. Ani described appellant’s complaints of pain and conducted
an examination. He diagnosed joint shoulder pain, rotator cuff syndrome, shoulder impingement,
elbow contusion, HNP bulge of the cervical intervertebral disc, and HNP bulge of the lumbar
intervertebral disc. Dr. Ani provided out of work note and duty status reports, which indicated
that appellant could work modified duty.
Counsel related in a letter dated June 11, 2015 that appellant was initially treated in the
emergency room on February 23, 2015 for complaints of significant pain in her neck and for a
concussion. He requested that her claim be accepted for low back, right elbow, bilateral shoulder,
head, and neck injuries. Counsel explained that he was in the process of obtaining medical support
for appellant’s traumatic injury claim.
OWCP also received appellant’s supplemental explanation of her claim. Appellant
described the February 23, 2015 employment incident and explained that she initially experienced
cervical and lumbar pain. She indicated that the shoulder injury was not immediately evident
because during her hospital visit, she was not asked to move her arm in different directions.
Appellant related that she did not realize she had significant shoulder pain until she returned home.
In a June 18, 2015 report, Dr. Ani indicated that appellant had been under his care since
February 27, 2015 for an injury to her right shoulder, neck, and right elbow after a slip and fall on
ice while working. He reported that examination of her right shoulder showed weakness of the
rotator cuff with 4/5 positive impingement. Dr. Ani explained that a May 1, 2015 right shoulder
MRI scan showed a near complete full thickness tear of the supraspinatus tendon with bursitis and
tendinopathy and a left shoulder MRI scan revealed tendinopathy with partial tear. He diagnosed
right shoulder rotator cuff tear and tendinopathy. Dr. Ani opined that appellant’s right shoulder
injury was directly related to the accident at work. He recommended surgery.

3

While OWCP accepted appellant’s claim on July 9, 2015 for right elbow and back
contusion, lumbar and neck sprain, in a separate July 9, 2015 decision, OWCP denied her claim
for the conditions of bilateral rotator cuff syndrome, bilateral shoulder impingement, right shoulder
rotator cuff tear and tendinopathy, HNP bulge of the cervical intervertebral disc, and HNP bulge
of the lumbar intervertebral disc. It found that the medical evidence of record was insufficient to
establish that these medical conditions were causally related to the February 23, 2015 employment
incident.
By letter dated July 20, 2015, counsel requested that appellant’s accepted conditions be
expanded to include the right shoulder condition and that authorization for right shoulder surgery
be granted as outlined in Dr. Ani’s June 18, 2015 report.
On July 22, 2015 OWCP received appellant’s request, through counsel, for a hearing.
Appellant submitted a June 29, 2015 electromyography and nerve conduction velocity
(EMG/NCV) studies by Dr. Steve M. Aydin, Board-certified in pain medicine and physical
medicine and rehabilitation. Dr. Aydin reported electrodiagnostic evidence of a mild carpal tunnel
syndrome in the bilateral upper extremities. He noted no evidence of cervical radiculopathy in the
bilateral upper extremities and no evidence of a large fiber peripheral neuropathy in the bilateral
upper extremities.
Dr. Ani continued to treat appellant. In reports dated July 1 to September 17, 2015, he
reviewed her history and provided examination findings similar to his previous examinations.
Dr. Ani related that a June 29, 2015 EMG/NCV study showed mild carpal tunnel syndrome in the
bilateral upper extremities. He diagnosed joint shoulder pain, bilateral rotator cuff syndrome, left
shoulder tendinopathy with partial tear, bilateral shoulder impingement, elbow contusion, HNP
and bulge of the cervical intervertebral disc, HNP and bulge of the lumbar intervertebral disc, and
bilateral carpal tunnel syndrome. Dr. Ani indicated that appellant could continue working
modified duty. He recommended surgery to repair her rotator cuff tear.
In a July 31, 2015 letter, Dr. Ani related that he had treated appellant since a February 23,
2015 employment injury. He related that examination of her right and left shoulder revealed
moderate limitation of range of motion with positive impingement signs and weakness of the
rotator cuff. Dr. Ani listed various diagnostic examinations which showed right shoulder
tendinopathy and supraspinatus tear, left shoulder tendinopathy with partial tear, cervical spine
small disc protrusions, lumbar spine multiple degenerative disc disease with herniation, and
bilateral carpal tunnel syndrome. He opined that the “above diagnoses are directly related to the
accident on February 23, 2015.” Dr. Ani recommended surgery on both shoulders and pain
management for the cervical spine.
A hearing was held on November 6, 2015 before an OWCP hearing representative.
Appellant explained that she sought treatment at the emergency room and then from Dr. Ani. She
indicated that she had four MRI scans of both shoulders, neck, and lower back and described their
findings. Counsel alleged that Dr. Ani’s July 31, 2015 report clearly described the February 23,
2015 employment incident and mechanism of injury of how appellant’s bilateral shoulder,
cervical, and lumbar conditions resulted from the slip and fall incident at work.

4

In a November 17, 2015 letter, Dr. Ani noted that appellant had been under his care since
February 27, 2015. He explained that she had an injury to her shoulder, neck, and right elbow
after a slip and fall at work. Dr. Ani reported that physical examination of appellant’s right
shoulder showed weakness of the rotator cuff with 4/5 positive impingement and described the
MRI examination scans of her bilateral shoulders. He diagnosed right shoulder rotator cuff tear
and tendinopathy with partial tear. Dr. Ani opined that appellant’s “slip and fall on ice while
working which occurred on February 23, 2015 is a direct cause of [appellant’s] rotator cuff tear of
the right shoulder. When [she] fell on the ice she put out her arm in an outstretched manner to
catch herself from further injury. This mechanism of injury is the direct cause of the rotator cuff
tear.” He emphasized the importance for her to undergo surgery.
By decision dated January 21, 2016, an OWCP hearing representative affirmed OWCP’s
July 9, 2015 decision in part and set aside and remanded in part. He found that the medical
evidence of record was insufficient to establish that appellant sustained bilateral rotator cuff
syndrome, bilateral shoulder impingement, right rotator cuff tear and tendinopathy, HNP/bulge
cervical intervertebral disc, and HNP/bulge lumbar intervertebral disc as a result of the
February 23, 2015 employment injury. The hearing representative also determined however that
the medical evidence submitted to the record post-hearing was sufficient to establish a diagnosis
of right shoulder rotator cuff tear and tendinitis. He remanded the prior OWCP decision for
development of the record to determine whether appellant’s right shoulder condition was causally
related to the accepted February 23, 2015 employment injury.
OWCP referred appellant’s claim, along with a statement of accepted facts (SOAF) and a
copy of the record, to Dr. Stanley Askin, a Board-certified orthopedic surgeon and second opinion
examiner, to determine whether her right shoulder condition was causally related to the accepted
February 23, 2015 employment incident and whether she sustained any additional diagnosed
conditions as a result of the accepted February 23, 2015 employment incident. In a March 4, 2016
report, Dr. Askin reviewed the SOAF and accurately described the February 23, 2015 employment
incident. He related appellant’s complaints of worsening right shoulder pain, worse with lifting,
and pain in the right trapezial area. Appellant indicated that she continued to work and was able
to accommodate her route due to her right shoulder complaints. Upon physical examination of her
neck, Dr. Askin reported full range of motion in flexion, extension, and rotation to either side with
complaints of discomfort when she looked toward the right. He related that examination of
appellant’s left shoulder showed stiffness and audible palpable clicking. Dr. Askin indicated that
right shoulder range of motion revealed pain at 160 degrees forward flexion and 110 degrees of
abduction. Neer/Hawkins test was negative. Dr. Askin reported that Phalen’s and Tinel’s signs
were positive bilaterally, which was suggestive of subclinical carpal tunnel syndrome. He noted
appellant’s accepted conditions of right elbow contusion and lumbar sprain. Dr. Askin indicated
that Dr. Ani provided additional diagnoses of bilateral rotator cuff syndrome, bilateral shoulder
impingement, HNP/bulge cervical intervertebral disc, HNP/bulge lumbar intervertebral disc, and
right shoulder rotator cuff tear and tendinopathy.
Dr. Askin opined that the objective examination findings of appellant’s shoulders were
“manifestations of underlying degenerative changes within the shoulder due to attrition of the
rotator cuff described as ‘tear’ on the right and tendinosis on the left.” He noted that with respect
to her right shoulder it was “possible” that underlying degenerative changes could be provoked by
a traumatic event. Dr. Askin related however that what was missing was a “nexus between the

5

described slip and fall and the right shoulder imperfections identified on MRI [scan].” He
explained that the shoulder MRI scan imperfections, including the right rotator cuff tear, bilateral
rotator cuff syndrome, and bilateral shoulder impingement, were common accompaniments of
aging and understood to be able appropriate degenerative changes. Dr. Askin noted that nothing
identified on appellant’s MRI scan studies was specifically traumatically induced. He concluded
that her right shoulder injury was not causally related to the accepted February 23, 2015 incident
and also not medically necessary to treat appellant’s February 23, 2015 employment injury.
Dr. Askin further opined that the medical evidence did not support additional conditions due to the
accepted February 23, 2015 employment trauma.
By decision dated December 9, 2016, OWCP denied appellant’s claim for additional
conditions based on the March 4, 2016 report of Dr. Askin, the second opinion examiner. It found
that the medical evidence of record did not support that appellant sustained bilateral rotator cuff
syndrome, bilateral shoulder impingement, right rotator cuff tear and tendinopathy, HNP/bulge
cervical intervertebral disc, and HNP/bulge lumbar intervertebral disc causally related to the
accepted February 23, 2015 employment incident.
On December 20, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative, which was held on March 1, 2017. Counsel asserted that Dr. Askin’s
March 4, 2016 second opinion report was not sufficiently well rationalized because Dr. Askin
merely provided a general response to its questions and did not provide any medical rationale to
support his conclusion that she did not sustain any additional conditions as a result of the accepted
February 23, 2015 employment incident. He also asserted that a conflict in medical evidence
existed between Dr. Askin, OWCP’s second opinion examiner, and Dr. Ani, appellant’s treating
physician, regarding whether appellant sustained additional bilateral shoulder, cervical, and
lumbar conditions as a result of the accepted February 23, 2015 employment incident, thereby
warranting referral to an impartial medical examiner.
By decision dated April 10, 2017, an OWCP hearing representative affirmed the
December 9, 2016 decision in part and vacated the decision in part. He found that the medical
evidence of record was insufficient to establish that appellant’s left shoulder, neck, and back
conditions were causally related to her February 23, 2015 employment injury. The hearing
representative determined that there was sufficient medical evidence regarding whether appellant
sustained a right shoulder injury causally related to her February 23, 2015 employment injury and
remanded the case for further development of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3 To establish causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting

3

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

such causal relationship.4 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.5 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.6 Neither the 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 causal
relationship.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.8 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.9
ANALYSIS
Initially OWCP accepted appellant’s claim for right elbow and back contusions, and
lumbar and neck sprain due to a slip and fall incident that occurred in the performance of duty on
February 23, 2015. In the most recent merit decision dated April 10, 2017, an OWCP hearing
representative remanded the case for further development of the medical evidence as to whether
her right shoulder conditions were causally related to the accepted February 23, 2015 employment
injury.10 However, in the decision dated April 10, 2017, the hearing representative affirmed
OWCP’s prior decision finding that the medical evidence of record was insufficient to establish
that appellant’s left shoulder rotator cuff syndrome and shoulder impingement, HNP bulge of the
cervical intervertebral disc, and HNP bulge of the lumbar intervertebral disc were causally related
to her February 23, 2015 employment injury.
The Board finds that appellant has not met her burden of proof to establish additional left
shoulder, cervical, and lumbar conditions causally related to her accepted injury.

4

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

5

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

7

Jennifer Atkerson, 55 ECAB 317 (2004).

8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

10

Because OWCP has not issued a final decision on the issue of expansion of the claim to include a right shoulder
injury, that matter is in an interlocutory posture as OWCP has remanded the matter for further development. See 20
C.F.R. § 501.2(c). See also G.L., Docket No. 07-1450 (issued January 29, 2008).

7

Appellant initially submitted a report from Dr. Nau, who treated her at the emergency room
on February 23, 2015. Dr. Nau however offered no opinion as to whether the conditions in
questions were causally related to the accepted employment incident. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.11 Causal relationship is a medical
question that must be established by probative medical opinion from a physician.12
OWCP also received a number of diagnostic reports. The Board has held that reports of
diagnostic tests, are of limited probative value as they fail to provide an opinion on the causal
relationship between appellant’s employment duties and the diagnosed conditions.13 For this
reason, this evidence is not sufficient to meet her burden of proof.14
Appellant submitted various reports from Dr. Ani dated February 27 to
November 17, 2015. Dr. Ani provided examination findings and diagnosed among other
conditions, left rotator cuff syndrome, left shoulder tenopathy with partial tear, left shoulder
impingement, elbow contusion, neck sprain, lumbar sprain, HNP bulge of the cervical
intervertebral disc, and HNP bulge of the lumbar intervertebral disc. In a July 31, 2015 letter, he
opined that the above diagnoses were directly related to the February 23, 2015 work accident. The
Board has long held that a mere conclusion, without the necessary medical rationale explaining
how and why the physician believes that a claimant’s accepted exposure could result in a diagnosed
condition, is insufficient to meet the claimant’s burden of proof.15 Dr. Ani offered no rationalized
medical explanation as to how physiologically appellant’s accepted fall on February 23, 2015
would have caused these various diagnosed conditions. Without explaining how physiologically
the movements involved in the employment incident caused or contributed to the diagnosed
conditions, Dr. Ani’s opinion is of limited probative value.16
In a March 4, 2016 report, Dr. Askin, an OWCP second opinion examiner, disagreed with
Dr. Ani’s medical opinion. He provided an accurate history of appellant’s injury and conducted a
physical examination. Dr. Askin related that her left shoulder condition was tendinitis, which
based upon objective findings was a manifestation of underlying degenerative changes. He
concluded that the medical evidence did not support any additional conditions due to the accepted
February 23, 2015 employment trauma. Dr. Askin provided a medical explanation supported by
objective findings. His opinion was based on an accurate background. The Board finds that

11

See S.G., Docket No. 17-1054 (issued September 14, 2017).

12

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

13

Supra note 11.

14

See A.B., Docket No. 17-0301 (issued May 19, 2017).

15

See A.B., Docket No. 16-0864 (issued November 16, 2016).

16

See T.H., Docket No. 17-0833 (issued September 7, 2017).

8

Dr. Askin’s second opinion is of probative medical value and represents the weight of the medical
evidence.17
Because appellant has not submitted medical evidence establishing that the conditions of
left shoulder rotator cuff syndrome and shoulder impingement, HNP bulge of the cervical
intervertebral disc, and HNP bulge of the lumbar intervertebral disc were causally related to her
February 23, 2015 employment injury, she 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 left shoulder
rotator cuff syndrome and shoulder impingement, HNP bulge of the cervical intervertebral disc,
and HNP bulge of the lumbar intervertebral disc causally related to the accepted February 23, 2015
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 4, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
17

See G.H., Docket No. 16-0876 (issued May 2, 2017).

9