United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, KING OF PRUSSIA
BRANCH, King of Prussia, PA, Employer
__________________________________________

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

Docket No. 11-1412
Issued: January 17, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant, through her attorney, filed a timely appeal from a
January 25, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding that she did not establish a recurrence of disability. She also appealed from a
February 23, 2011 merit decision denying her schedule award claim. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has a permanent impairment to a scheduled
member entitling her to a schedule award; and (2) whether she sustained a recurrence of
disability on March 30, 2010 causally related to her March 16, 1993 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 16, 1993 appellant, then a 42-year-old letter carrier, filed a claim alleging that
she injured her low back on that date when she slipped and fell on ice. OWCP accepted the
claim for a sprain of the lumbosacral joint, fibromyositis/myalgia and a sciatic nerve lesion.
Appellant worked in a limited-duty capacity following her injury.
In an impairment evaluation dated April 3, 2008, Dr. Nicholas P. Diamond, an osteopath,
applied the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001) (A.M.A., Guides) and found that appellant had a 15 percent permanent impairment
of the right lower extremity due to loss of range of motion of the hip. He further determined that
she had an additional 3 percent impairment due to pain, for a total right lower extremity
impairment of 18 percent.
In a report dated April 16, 2008, Dr. Kevin F. Hanley, a Board-certified orthopedic
surgeon and OWCP referral physician, diagnosed lumbar radicular syndrome with piriformis
syndrome. He advised that appellant could perform limited-duty employment and provided
work restrictions.
On December 31, 2008 appellant filed a claim for a schedule award. OWCP referred her
to Dr. Zohar Stark, a Board-certified orthopedic surgeon, for a second opinion impairment
evaluation. In a report dated March 3, 2009, Dr. Stark found that appellant had no permanent
impairment due to her March 16, 1993 work injury.
By decision dated March 13, 2009, OWCP denied appellant’s claim for a schedule award.
On March 18, 2009 appellant’s attorney requested an oral hearing. In a decision dated
October 14, 2009, the hearing representative set aside the March 13, 2009 decision. She found
that the statement of accepted facts provided to Dr. Stark did not include all accepted conditions.
The hearing representative remanded the case for OWCP to obtain an impairment evaluation
based on an accurate statement of accepted facts under the sixth edition of the A.M.A., Guides.
On October 19, 2009 OWCP referred appellant, together with an updated statement of
accepted facts, to Dr. Noubar Didizian, a Board-certified orthopedic surgeon, for a second
opinion examination. In a report dated November 12, 2009, Dr. Didizian found that appellant
had recovered from the accepted work injuries and had no permanent impairment.
OWCP determined that a conflict in medical opinion existed between Dr. Diamond and
Dr. Didizian regarding the extent of appellant’s permanent impairment. It referred appellant to
Dr. Ellicott Menkowitz, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a report dated January 28, 2010, Dr. Menkowitz reviewed the accepted
conditions of lumbosacral joint sprain, myalgia and myositis and a sciatic nerve lesion and
discussed appellant’s complaints of pain radiating through the right leg to the toe and soreness of
the piriformis area.2 He measured full range of motion of the upper extremities with no
2

The piriformis is a muscle in the gluteal region of the lower limb. Piriformis syndrome occurs when the sciatic
nerve is compressed and causes pain descending into the thigh and leg.

2

neurologic or sensory deficits. Dr. Menkowitz found that appellant had a negative straight leg
raising test. He stated, “The examination of the hips show full range of motion bilaterally
without any reproduction of pain. Palpation over the sciatic notch bilaterally does not reproduce
her subjective complaint.” Dr. Menkowitz concluded that appellant had no permanent
impairment under the sixth edition of the A.M.A., Guides.
On February 18, 2010 an OWCP medical adviser reviewed the evidence and concurred
with Dr. Menkowitz’ opinion that appellant had no impairment.
By decision dated March 4, 2010, OWCP denied appellant’s claim for a schedule award.
It found that Dr. Menkowitz’ opinion represented the weight of the evidence and established that
she had no permanent impairment.
On March 9, 2010 appellant, through her attorney, requested an oral hearing.
In a report dated March 30, 2010, Dr. Marc S. Effron, an attending Board-certified
physiatrist, stated:
“[Appellant] reports a recurrence of a similar quality severe intensity lumbar
radicular pain into the right foot. She has the diagnosis of piriformis syndrome
and has received benefit with corticosteroid injections in the past targeting the
piriformis muscle on the right. [Appellant] admits that beginning yesterday she
developed an acute worsening and is unsure of any specific inciting event. She
works for the [employing establishment] doing modified duty.”
Dr. Effron diagnosed right piriformis syndrome, right sacroiliac joint dysfunction, lumbar
radiculopathy and lumbar radicular pain. He noted that a magnetic resonance imaging (MRI)
scan study of the sacrum did not show entrapment and an electrodiagnostic study of 10 years
prior was normal. Dr. Effron found that appellant should remain off work the rest of the week
and begin sedentary duty the following week.
In a progress report dated April 6, 2010, Dr. Roy M. Lerman, a Board-certified
physiatrist, discussed appellant’s complaints of increased right low back and leg pain. He
recommended ruling out piriformis syndrome with a recent exacerbation and ruling out S1 joint
dysfunction. Dr. Lerman noted that appellant did “more overall at work over the last few
months.” He diagnosed an “exacerbation of her symptoms related to work activities” and
recommended that she not work for two weeks. In reports dated April 20, 2010, Dr. Lerman
diagnosed right piriformis syndrome and S1 joint dysfunction and found that appellant was
unable to work for two weeks.
On May 7, 2010 appellant filed a notice of recurrence of disability on March 30, 2010
causally related to her March 16, 1993 employment injury. She related that she worked on
March 29, 2010 and awoke the following morning with pain radiating from her back into her
right leg.
On May 4, 2010 Dr. Lerman discussed appellant’s improvement with physical therapy.
He diagnosed right piriformis syndrome and possible right S1 joint dysfunction. Dr. Lerman
found that she should remain off work pending an evaluation in three weeks. On May 24, 2010
3

he noted that appellant related that she was “not quite back to her pre-flare-up baseline. Her one
concern is her ability to tolerate activities involved with work.”
On June 2, 2010 Dr. Diamond applied the sixth edition of the A.M.A., Guides to the
findings from his April 3, 2008 report. He found that appellant had a two percent impairment of
the right lower extremity.
On July 19, 2010 appellant related that, after her injury to her back and right hip, she
experienced continual soreness down her right leg. She related that even performing light duty
aggravated the pain and resulted in flare-ups.3
In a progress report dated June 28, 2010, Dr. Lerman noted that appellant was “concerned
as her claim has not been accepted by [OWCP].” He recommended a piriformis muscle injection
and indicated that he had completed a duty status report with work restrictions.4
By decision dated August 2, 2010, OWCP found that appellant had not established that
she sustained an employment-related recurrence of disability beginning March 30, 2010. On
August 6, 2010 appellant’s attorney requested an oral hearing.
By decision dated August 10, 2010, a hearing representative set aside the March 4, 2010
schedule award decision. She found that an OWCP medical adviser responsible for creating the
conflict in medical opinion inappropriately reviewed the report of Dr. Menkowitz, the impartial
medical examiner. The hearing representative remanded the case for an OWCP medical adviser
not previously associated with the case to review the report of Dr. Menkowitz.
In a report dated August 9, 2010, Dr. Lerman related that he had treated appellant
beginning July 9, 1993 for her March 16, 1993 employment injury when she fell on her right hip
after slipping on ice. Appellant sought treatment on March 30, 2010 for an exacerbation of her
back and right leg pain. Dr. Lerman stated, “The day prior to that visit, there was an acute
worsening of her symptoms in the course of her work at the [employing establishment].” He
summarized the remainder of his treatment notes and advised that appellant could currently work
with restrictions. Regarding OWCP’s request for clarification of his disability finding and
causation, Dr. Lerman stated:
“[Appellant] has worked throughout this time on modified duty. She was taken
off work for the exacerbation in March. This was an exacerbation of her
preexisting condition. It was felt to be associated with increased activities at
work. Over time, [appellant] has improved, restrictions were updated, and her
supervisor was able to accommodate these restrictions.”
On August 31, 2010 OWCP’s medical adviser reviewed the evidence and found that there
was “no evidence of nerve root injury or dysfunction” affecting the lower extremity based on
3

On July 21, 2010 a manager with the employing establishment asserted that appellant indicated that she felt fine
when she left work on March 29, 2010 but woke up on March 30 with pain.
4

On July 12, 2010 Dr. Lerman noted that appellant experienced increased symptoms since returning to work. He
noted that she wanted to keep working.

4

diagnostic studies. He further noted that Dr. Menkowtiz found no loss of motion of the right hip.
The medical adviser concluded that appellant had no permanent impairment to the right lower
extremity.
By decision dated September 1, 2010, OWCP denied appellant’s schedule award claim.
On September 9, 2010 her attorney requested an oral hearing.5
In a progress report dated December 3, 2010, Dr. Lerman diagnosed possible right
piriformis syndrome, gluteal myofascial pain and a possible lumbar disc injury. He advised that
appellant’s condition constituted a new injury rather than a recurrence of disability “as there was
an occurrence at work that precipitated her current level of symptoms. The exact etiology of her
symptoms is not known as she has not had further evaluation with [an] MRI scan of the lumbar
spine.”
At a December 14, 2010 hearing, appellant described her work duties delivering cluster
boxes on March 29, 2010 and noted that when she woke up on March 30, 2010 she experienced
considerable pain. Her attorney argued that her claim should be expanded to include piriformis
syndrome and right S1 joint dysfunction.
In a decision dated January 25, 2011, the hearing representative affirmed the August 2,
2010 decision, as modified to reflect that appellant sustained lumbar radicular syndrome and
piriformis syndrome based on the April 16, 2008 report of Dr. Hanley. He found, however, that
the evidence was insufficient to show that she sustained a recurrence of disability.
In a decision dated February 23, 2011, a hearing representative affirmed the September 1,
2010 decision denying appellant’s schedule award claim.
On appeal appellant’s attorney contends that OWCP’s delay in failing to issue a schedule
award under the fifth edition of the A.M.A., Guides deprived her of a property right without due
process. He also argues that Dr. Didizian’s report is insufficient to create a conflict as he did not
provide rationale for his conclusions or make specific reference to the A.M.A., Guides. Counsel
notes that OWCP’s medical adviser did not review Dr. Diamond’s finding of a two percent
impairment. He additionally argues that Dr. Menkowitz opinion is not based on an accurate
statement of accepted facts as it did not include the expanded conditions of lumbar radicular
syndrome and piriformis syndrome. Counsel further maintains that Dr. Lerman’s August 9, 2010
report is sufficient to establish a recurrence of disability.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
5

In a duty status report dated October 11, 2010, Dr. Lerman listed work restrictions. He continued to submit
progress reports.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

5

impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS -- ISSUE 1
OWCP determined that a conflict arose between Dr. Diamond, appellant’s physician, and
Dr. Didizian, a referral physician, regarding whether he had any employment-related permanent
impairment to the right lower extremity.11 It referred her to Dr. Menkowitz, a Board-certified
orthopedic surgeon, for resolution of the conflict in medical opinion. On January 28, 2010
Dr. Menkowitz reviewed the accepted conditions of lumbosacral joint sprain, myalgia, myositis
and a sciatic nerve lesion. He discussed appellant’s complaints of right leg pain radiating into
the big toe of the foot and soreness around the piriformis area. Dr. Menkowtiz found that she
had full range of motion of the upper and lower extremities and no sensory deficit of the upper
extremities. He opined that appellant had no permanent impairment of an extremity under the
sixth edition of the A.M.A., Guides.
On appeal appellant’s attorney argued that, subsequent to Dr. Menkowitz’ opinion,
OWCP accepted lumbar radicular syndrome and piriformis syndrome, and thus the impartial
medical examiner’s report was not based on a complete and accurate statement of accepted facts.
Dr. Menkowitz rendered his opinion on January 28, 2010 and OWCP expanded acceptance of
the claim on January 25, 2011. OWCP accorded special weight to Dr. Menkowitz’ impartial
medical examination in its February 23, 2011 decision even though he had no knowledge of the
additional accepted conditions. As his opinion was not based on a current and accurate factual
and medical background, the Board finds it cannot be entitled to special weight. The medical
conflict regarding whether appellant has a permanent impairment entitling her to a schedule
award remains unresolved.12

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

11

On appeal appellant’s attorney argues that Dr. Didizian’s report is insufficient to create a conflict; however, his
report is detailed and rationalized and thus of sufficient probative value.
12

See R.F., Docket No. 09-1605 (issued June 10, 2010).

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When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect in his
original report.13 On remand, it should provide Dr. Menkowitz with an updated statement of
accepted facts and secure a supplemental report from him regarding whether the additional
accepted conditions of lumbar radiculopathy and piriformis syndrome resulted in a permanent
impairment of a scheduled member. After this and such other development as OWCP deems
necessary, it should issue a de novo decision.14
LEGAL PRECEDENT -- ISSUE 2
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.15
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.16 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.17

13

See Raymond A. Fondots, 53 ECAB 637 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

14

On appeal appellant’s attorney argues that OWCP’s delay in issuing a schedule award under the fifth edition of
the A.M.A., Guides deprived her of a property right without due process, citing Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant who was in receipt of
benefits (in Goldberg public assistance, and in Mathews social security benefits) could not have those benefits
terminated without procedural due process. In Mathews the court noted that the private interest that would be
adversely affected by the erroneous termination of benefits was likely to be less in a disabled worker than a welfare
recipient, and due process would not require an evidentiary hearing. In this case, appellant is simply making a claim
for a schedule award. She is not in receipt of schedule award benefits nor is OWCP attempting to terminate any
benefits. Appellant has not established a vested right to a schedule award decision under the fifth edition of the
A.M.A., Guides nor has she identified any procedural due process which she has been denied. The cases cited by
appellant are not applicable to the present case.
15

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
16

20 C.F.R. § 10.5(x).

17

Id.

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ANALYSIS -- ISSUE 2
Following her March 16, 1993 work injury, appellant performed limited-duty
employment. She stopped work on March 30, 2010 and filed a notice of recurrence of disability
beginning that date. Appellant related that she performed work on March 29, 2010 and awoke
the next morning with back pain radiating into her right leg.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. Instead, she attributed her recurrence of disability to a change in the nature and
extent of her employment-related conditions. Appellant must provide medical evidence to
establish that she was disabled due to a worsening of her accepted work-related conditions.18
On March 30, 2010 Dr. Effron related that appellant described a worsening of right
radicular pain beginning the previous day without “any specific inciting event.” He noted that
she performed modified duty for the employing establishment. Dr. Effron diagnosed right
piriformis syndrome, right sacroiliac joint dysfunction and lumbar radiculopathy. He advised
that appellant should remain off work one week and then perform sedentary duty. Dr. Effron,
however, did not address the cause of her disability. 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.19
In an April 6, 2010 report, Dr. Lerman reviewed appellant’s complaints of right back and
leg pain and noted that she had done more at work in the last few months. He diagnosed a
possible exacerbation of piriformis syndrome and possible S1 joint dysfunction. Dr. Lerman
advised that appellant’s symptoms had been aggravated by employment activities. He found that
she should not work for two weeks. A recurrence of disability, however, is a work stoppage
caused by “a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”20 As Dr. Lerman found that appellant’s condition was aggravated by
employment duties, any disability resulting from the alleged aggravation would be considered a
new injury and not a recurrence as defined by the regulations.
In progress reports dated April 20, May 4 and 24, and June 28, 2010, Dr. Lerman
diagnosed right piriformis syndrome and possible right S1 joint dysfunction and provided
findings regarding disability. He did not, however, address causation and thus his report is of
little probative value on the issue of causal relationship.21
On August 9, 2010 Dr. Lerman noted that he had treated appellant since July 9, 1993 for
her March 16, 1993 employment injury. He diagnosed piriformis syndrome and possible right
S1 joint dysfunction. Dr. Lerman opined that appellant aggravated her preexisting condition in
18

See Jackie D. West, supra note 15.

19

See L.W., 59 ECAB 271 (2007); Conrad Hightower, 54 ECAB 796 (2003).

20

20 C.F.R. § 10.5(x).

21

See supra note 19.

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March 2010 due to “increased activities at work.” As previously noted, however, a recurrence of
disability does not include disability resulting from exposure to new work factors, even if it
involves the same part of the body previously injured.22
On December 3, 2010 Dr. Lerman recommended ruling out piriformis syndrome and a
lumbar disc injury. He determined that appellant’s condition was a new injury rather than a
recurrence of disability and that the exact etiology was not known. Consequently, Dr. Lerman’s
opinion does not support that she sustained a recurrence of disability.
On appeal appellant’s attorney argues that Dr. Lerman’s August 9, 2010 report is
sufficient to show a recurrence of disability. As discussed, however, Dr. Lerman attributed her
condition to the course of her work the previous day and a condition caused or aggravated by
new work factors constitutes a new injury rather than a recurrence of disability. On return of the
case record, if it has not already done so, OWCP should appropriately develop a claim for a new
injury.
With respect to the recurrence of disability, appellant may submit new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained any permanent impairment to her right lower extremity. The Board further finds that
she did not establish a recurrence of disability on March 30, 2010 causally related to her
March 16, 1993 employment injury.

22

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(2)
(May 1997); see also Cecelia M. Corley, 56 ECAB 662 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board. The January 25, 2011 decision is affirmed.
Issued: January 17, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION IV, Atlanta, GA, Employer
__________________________________________

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

Docket No. 11-2115
Issued: May 2, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from the June 3, 2011 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 her burden of proof to establish that she sustained a
medical condition due to her May 13, 2010 work injury other than her accepted right hip sprain.
FACTUAL HISTORY
In May 13, 2010, appellant, then a 61-year-old claims representative, sustained a right hip
injury at work. She bent over to pick something up from the floor and fell out of her chair,
which in turn fell on top of her. Appellant had previously undergone surgery for a right hip
1

5 U.S.C. §§ 8101-8193.

replacement. She also alleged injuries to her hands, arms, right shoulder, neck, lower back and
right leg as a result of this incident. Appellant did not stop work. On August 9, 2010 OWCP
found that the evidence was sufficient to support that the work incident caused a right hip sprain.
Appellant’s claim was approved for benefits in connection with that medical condition.
Appellant continued to claim that she sustained injuries to her hands, arms, right
shoulder, neck, lower back and right leg as a result of the May 13, 2010 incident. She submitted
reports dated May 25, June 9, August 13 and September 2, 2010 from Dr. Eric Williams, an
attending Board-certified family practitioner, who noted that appellant reported ongoing pain in
her right hand, wrist and shoulder since her accident on May 13, 2010. Appellant experienced
upper extremity numbness, paresthesias and weakness since the fall which required treatment.
On August 13, 2010 Dr. Williams stated that appellant was evaluated on May 26, 2010
for a fall at work. Appellant fell out of her chair and had a direct hit to her sacrum and lumbar
spine as well as both wrists. On her first visit for her pain, she complained of injuries to her hips,
back, shoulders and wrists. Appellant also complained of numbness and tingling which radiated
down her lower extremities. Dr. Williams indicated that she was diagnosed with multiple
contusions, hematoma, bilateral shoulder pain and sciatica. He stated:
“[Appellant’s] fall which placed direct pressure on her sacrum and lumbar spine
may have caused her ongoing low back pain and sciatica. The hematoma and
contused hip were direct result of her injury sustained on that day. Injuries to
[appellant’s] wrist also resulted from her fall.”
Appellant also submitted May 19 and June 9, 2010 reports from Dr. Hugh C. McLeod, an
attending Board-certified orthopedic surgeon, who noted that she reported falling on her buttocks
and cushioning her fall with her hands on May 13, 2010. She reported experiencing palmar pain
since that time. In a July 15, 2010 report, Dr. Thomas Bradbury, an attending Board-certified
orthopedic surgeon, discussed appellant’s right hip condition.
In a September 24, 2010 decision, OWCP denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish a medical condition due to her
May 13, 2010 injury other than her accepted right hip sprain. Although appellant alleged pain in
her hands, arms, right shoulder and neck, no physician offered a clear diagnosis of any additional
medical conditions made in connection with the work incident of May 13, 2010.
Appellant requested a review of the written record by an OWCP hearing representative.
She provided written statements, dated September 2 and October 4, 2010, containing arguments
in support of her claim.
In a September 8, 2010 report, Dr. Houston Payne, an attending Board-certified
orthopedic surgeon, stated that appellant was seen for evaluation of symptoms in the right upper
extremity. He noted that she reported that she fell at work on May 13, 2010 and caught herself
with her outstretched hand. Dr. Payne stated, “It sounds like [appellant] had a palmar contusion
that was significant.” Since that time, appellant had intermittent pain and swelling and periodic
numbness, more so at night. Dr. Payne reviewed electrodiagnostic studies, the medical history
and medical information provided by appellant. He performed a physical examination of

2

appellant and noted that a radiograph showed underlying thumb carpometacarpal joint
osteoarthritis. Dr. Payne’s impression was “symptoms of carpal tunnel syndrome and possible
direct ulnar nerve contusion at the wrist level also.” Appellant was injected with dexamethasone
and lidocaine in her right arm.
In a September 22, 2010 report, Dr. Payne advised that the injection he carried out had
relieved appellant’s right arm symptoms temporarily, but that these symptoms had recurred. He
recommended right arm surgery considering her persistent symptoms and abnormal
electrodiagnostic studies. Dr. Payne recommended a right carpal tunnel decompression, right
ulnar tunnel decompression and right ulnar nerve decompression at the elbow.
In a February 10, 2011 decision, an OWCP hearing representative affirmed the
September 24, 2010 decision.
In a February 3, 2011 report, Dr. Harold Alexander, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, noted that appellant continued to have residuals of her
May 13, 2010 injury “in that she continues to have significant symptoms of her right upper
extremity, which according to the hand surgeon would best be treated by surgical decompression
as mentioned.” In a February 24, 2011 report, Dr. Timothy Micek, an attending Board-certified
orthopedic surgeon, recommended that she undergo a right ulnar nerve release at the elbow and a
right carpal tunnel release at the wrist.
In an April 5, 2011 decision, OWCP affirmed the February 10, 2011 decision. It again
found that the additional reports submitted by appellant did not show that she sustained a
medical condition due to her May 13, 2010 work injury other than her accepted right hip sprain.
Appellant submitted a surgical report dated March 18, 2011, for a right carpal tunnel
release performed that day. The report did not provide any discussion of a cause and effect
relationship between the May 13, 2010 injury and the diagnosed right carpal and cubital tunnel
syndrome. A postoperative note dated March 30, 2011 was a narrative of the postsurgical
evaluation and also did not provide any discussion of a cause and effect relationship between the
May 13, 2010 injury and the diagnosed right carpal and cubital tunnel syndrome. In a
supplemental report dated March 30, 2011, Dr. Alexander indicated that, after recovery from her
arm surgery, appellant could return to light-duty work.
In a June 3, 2011 decision, OWCP affirmed its April 5, 2011 decision finding that the
medical evidence was insufficient to establish appellant’s claim for additional work-related
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual was an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation was claimed are

3

causally related to the employment injury.2 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury was rationalized
medical opinion evidence. Rationalized medical opinion evidence was medical evidence which
includes a physician’s rationalized opinion on the issue of whether there was a causal
relationship between appellant’s diagnosed condition and the compensable employment factors.
The opinion of the physician must be based on a complete factual and medical background of
appellant, 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 appellant.3 Whether a particular employment injury
causes disability for employment and the duration of that disability are medical issues, which
must be proved by a preponderance of reliable, probative and substantial medical evidence.4
ANALYSIS
OWCP found that appellant sustained a right hip sprain due to a fall out of a chair on
May 13, 2010.5 Appellant claimed that, due to the May 13, 2010 work incident, she also
sustained injuries to her hands, arms, right shoulder, neck, lower back and right leg. OWCP
denied her claim on the grounds that she did not submit sufficient medical evidence to establish
any additional work-related condition.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained a medical condition due to her May 13, 2010 work injury other than her accepted
right hip sprain.
In an August 13, 2010 report, Dr. Williams, an attending Board-certified family
practitioner, stated that appellant was evaluated on May 26, 2010 for a fall at work. He noted
that, on her first visit for her pain, she complained of injuries to her hips, back, shoulders and
wrists and reported numbness and tingling, which radiated down her lower extremities.
Dr. Williams indicated that appellant was diagnosed with multiple contusions, hematoma,
bilateral shoulder pain and sciatica. He stated that her fall placed direct pressure on her sacrum
and lumbar spine and “may have” caused her ongoing low back pain and sciatica. Dr. Williams
stated, “The hematoma and contused hip were direct result of [appellant’s] injury sustained on
that day. Injuries to her wrist also resulted from her fall.”
The submission of this evidence would not establish appellant’s claim for additional
work-related conditions because Dr. Williams did not provide a clear, rationalized opinion that
she sustained such additional conditions. With respect to her back condition, Dr. Williams used
the conditional term “may have” to describe a possible work-related cause. However, the Board
has held that a speculative opinion on causal relationship is of limited probative value.6
2

J.F., Docket No. 09-1061 (issued November 17, 2009).

3

See E.J., Docket No. 09-1481 (issued February 19, 2010).

4

W.D., Docket No. 09-658 (issued October 22, 2009).

5

It appears that appellant primarily fell on her buttocks but attempted to break her fall with her outstretched arms.

6

See Jennifer Beville, 33 ECAB 1970, 1973 (1982); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

4

Dr. Williams suggested that appellant sustained some injury to her hands due to the May 13,
2010 fall, but he did not provide an opinion that she sustained a specific, diagnosed condition of
her hands on May 13, 2010.
In a September 8, 2010 report, Dr. Payne, an attending Board-certified orthopedic
surgeon, indicated that appellant was seen for evaluation of symptoms in the right upper
extremity. He noted that she reported that she fell at work on May 13, 2010 and caught herself
with her outstretched hand. Dr. Payne stated, “It sounds like [appellant] had a palmar contusion
that was significant.” His impression was “symptoms of carpal tunnel syndrome and possible
direct ulnar nerve contusion at the wrist level also.” Dr. Payne’s report is of limited probative
value on the relevant issue of the present case in that he did not provide a clear opinion that
appellant sustained a hand condition on May 13, 2010. His comments regarding a “palmar
contusion” appear to relate to her own description of the effects of the May 13, 2010 work
incident and do not constitute a clear opinion on causal relationship. Dr. Payne diagnosed carpal
tunnel syndrome and possible direct ulnar nerve contusion, but did not provide any indication
that these conditions were related to the May 13, 2010 fall at work.
In a February 3, 2011 report, Dr. Alexander, a Board-certified orthopedic surgeon serving
as an OWCP referral physician, indicated that appellant continued to suffer residuals of her
May 13, 2010 injury “in that she continues to have significant symptoms of her right upper
extremity, which according to the hand surgeon would best be treated by surgical decompression
as mentioned.” However, this statement does not appear to constitute his own opinion that she
sustained injury to her right arm on May 13, 2010. Rather, it appears to represent
Dr. Alexander’s impression of another physician’s opinion, presumably that of Dr. Payne.
Appellant did not submit rationalized medical evidence showing that she sustained a
medical condition on May 13, 2010 other than the accepted right hip sprain and OWCP properly
denied her claim for additional conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a medical condition due to her May 13, 2010 work injury other than her accepted right
hip sprain.

5

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
S.V., Appellant

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

Docket No. 07-568
Issued: May 31, 2007

Case Submitted on the Record

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

JURISDICTION
On December 26, 2006 appellant filed a timely appeal of a December 6, 2006 decision of
the Office of Workers’ Compensation Programs with respect to a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than an eight percent monaural hearing
loss in his left ear; and (2) whether the Office properly denied a request for a postponement of a
telephone hearing and issued a decision based on review of the written record.
FACTUAL HISTORY
On July 21, 2005 appellant, then a 62-year-old engine mechanic supervisor, filed an
occupational claim (Form CA-2), alleging that he sustained hearing loss in his left ear as a result
of his federal employment. The employing establishment indicated that his current job required
him to enter noise hazard areas. Employing establishment audiograms from 1981 to 2004 were
submitted.

The Office referred appellant to Dr. Richard Dawson, an otolaryngologist, for
examination. In a report dated October 10, 2005, Dr. Dawson provided a history and results on
examination. He diagnosed bilateral high tone sensorineural hearing loss, left worse than right.
Dr. Dawson opined that the workplace noise exposure was sufficient to have contributed to the
hearing loss. The audiogram dated October 10, 2005 performed for Dr. Dawson provided the
following decibel levels at 500, 1,000, 2,000 and 3,000 cycles per second (cps); for the left ear,
20, 25, 30 and 45 and; for the right ear, 20, 20, 20 and 15. Dr. Dawson opined that appellant had
a 7.5 percent left ear hearing loss.
An Office medical adviser reviewed the medical evidence and in a November 16, 2005
report, concurred that appellant had a 7.5 percent monaural hearing loss in the left ear. He
opined that the date of maximum medical improvement was October 10, 2005.
By decision dated June 16, 2006, the Office issued a schedule award for left ear hearing
loss. The period of the award was 4.16 weeks from October 10, 2005. The Office decision
stated that the hearing loss was 7.5 percent.
Appellant requested an oral hearing on June 22, 2006 and checked a box that he was open
to a telephone hearing. By letter dated September 8, 2006, an Office hearing representative
notified him that a telephone hearing would be held on October 11, 2006 at 1:00 p.m. Eastern
time. On October 16, 2006 the Office received a letter from appellant stating that he called at
1:50 p.m. “my time.” Appellant’s address is Earlsboro, Oklahoma. He requested a scheduled
hearing face to face. By letter October 23, 2006, the hearing representative advised appellant
that rescheduling was not possible and he would conduct a review of the written record in
accordance with 20 C.F.R. § 10.622.
By decision dated December 6, 2006, the hearing representative affirmed the June 16,
2006 Office decision. He also stated that appellant’s request for postponement and rescheduling
of the October 11, 2006 telephone hearing was denied.
LEGAL PRECEDENT -- ISSUE 1
The Office evaluates industrial hearing loss in accordance with the standards contained in
the American Medical Association, Guides to the Evaluation of Permanent Impairment.1 Using
the frequencies of 500, 1,000, 2,000 and 3,000 cps, the hearing levels at each frequency are
added up and averaged.2 Then, the “fence” of 25 decibels is deducted because, as the A.M.A.,
Guides points out, levels below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.3 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.4 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
1

A.M.A., Guides 250 (5th ed. 2001).

2

Id.

3

Id.

4

Id.

2

by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.5 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.6
ANALYSIS -- ISSUE 1
The audiological evaluation by the second opinion otolaryngologist, Dr. Dawson,
indicated that appellant sustained employment-related hearing loss. As noted above, the degree
of permanent impairment is determined by the formula set forth in the A.M.A., Guides. For the
right ear, no ratable impairment was found. The hearing levels of 20, 20, 20 and 15 result in an
18.75 average and after the fence of 25 is deducted, there is no ratable impairment. For the left
ear hearing levels of 20, 25, 30 and 45 result in an average decibel level of 30. Deducting the
fence of 25 and then multiplying the result by 1.5 results in a 7.5 percent left ear hearing loss.
The 7.5 percent is then rounded up to 8 percent in accord with Office procedures.7 The
Board notes that the number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete monaural hearing loss, the maximum
number of weeks of compensation is 52 weeks. Since appellant’s monaural hearing loss was 8
percent, he is entitled to 8 percent of 52 weeks or 4.16 weeks of compensation.8
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from residuals of the employment
injury.9 In this case, the Office medical adviser properly concluded that the date of maximum
medical improvement was the date of examination by Dr. Dawson. The award, therefore, properly
runs for 4.16 weeks commencing on October 10, 2005.
LEGAL PRECEDENT -- ISSUE 2
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.10 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
5

Id.

6

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon., granted (modifying prior decision) Docket No.
01-1570 (issued August 13 2002).
7

See Laura Heyen, 57 ECAB ____ (Docket No. 05-1766, issued February 15, 2006); Johnnie B. Causey,
57 ECAB ____ (Docket No. 06-49, issued February 7, 2006). As the Office’s procedure manual explains with
respect to hearing loss, the number is rounded up from .50 and down from .49. Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2) (September 1994).
8

Although the June 16, 2006 decision stated that the degree of permanent impairment was 7.5 percent, the award
was for 4.16 weeks of compensation which represents an 8 percent monaural hearing loss.
9

Albert Valverde, 36 ECAB 233, 237 (1984).

10

20 C.F.R. § 10.616(a).

3

any representative at least 30 days before the scheduled date.11 Scheduling of the oral hearing is
at the sole discretion of the hearing representative.12 Once the oral hearing is scheduled and
appropriate notice mailed to the claimant, the oral hearing cannot be postponed except for the
reasons stated in 10.622(c),13 unless the hearing representative can reschedule the hearing on the
same docket. When the request for postponement does not meet the test of 10.622(c) and cannot
be accommodated on the docket, no further opportunity for an oral hearing will be provided.
The hearing will take the form of a review of the written record and a decision issued
accordingly.14
ANALYSIS -- ISSUE 2
A telephone hearing was scheduled for 1:00 p.m. Eastern time on October 11, 2006.
Appellant apparently called at 1:50 p.m. Central time, which would be 2:50 p.m. Eastern time.
He then requested that the hearing be rescheduled and he appeared to request an oral hearing
before an Office hearing representative, rather than a telephone hearing. As the above
regulations indicate, the hearing representative has sole discretion regarding scheduling. Unless
the requirements of section 10.622(c) are met the hearing representative can reschedule on the
same docket, no further opportunity for an oral hearing is provided. The hearing representative
indicated that he was unable to reschedule the hearing. In addition, there is no evidence that any
of the reasons provided in 10.622(c) were applicable in this case. Accordingly, the request for a
hearing takes the form of a review of the written record and an appropriate decision is issued.
There is no evidence of any error with respect to the December 6, 2006 decision in this case.
CONCLUSION
The evidence does not establish that appellant has more than an eight percent monaural
hearing loss. The Office hearing representative properly issued a decision based on a review of
the written record in this case.

11

20 C.F.R. § 10.617(b).

12

20 C.F.R. § 10.622(b).

13

This section provides that a postponement may be granted for nonlective hospitalization or death of the
claimant’s parent, spouse or child.
14

20 C.F.R. § 10.622(b).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6 and June 16, 2006 are affirmed.
Issued: May 31, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RICON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1087
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 12, 2021 appellant, through counsel, filed a timely appeal from a June 1, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated May 6, 2021, which became final after 30 days of
issuance and is not subject to further review. 2 As there was no merit decision on the underlying
issue of suitable work by OWCP within 180 days of the filing of this appeal, 3 pursuant to the

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

20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); see A.F., Docket No. 18-0645 (issued
October 26, 2018).
3

Counsel did not appeal a March 25, 2021 OWCP merit decision, which denied appellant’s claim for a schedule
award. As counsel did not appeal from that decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition causally related to factors of her
federal employment, including repeated trauma caused by casing and carrying mail. OWCP
accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the
right hand. 6 It paid appellant wage-loss compensation on the supplemental rolls effective
October 29, 2016, and on the periodic rolls effective, April 2, 2017.
By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It explained that Dr. Michael A. Steingart,
OWCP’s second opinion physician, an osteopathic physician specializing in sports medicine
provided a well-reasoned opinion as to appellant’s current work limitations and the employing
establishment had offered her a job within those restrictions.
On October 14, 2019 appellant requested reconsideration of the October 3, 2019 decision.
She resubmitted medical evidence previously of record, including a November 9, 2017 narrative
report and a November 5, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R.
Klein, a Board-certified orthopedic surgeon.
On December 13, 2019 OWCP thereafter received a copy of a July 9, 2019 report from
Dr. Amit Sahasrabudhe, a Board-certified orthopedic surgeon. This report was previously
received by OWCP on October 1, 2019 but was not reviewed in OWCP’s decision dated
October 3, 2019.7

4

5 U.S.C. § 8101 et seq.

5

Docket No. 20-0676 (issued May 6, 2021).

6

Appellant was diagnosed with a concurrent nonindustrial injury to include a degenerative full-thickness central
perforation tear of the triangular fibrocartilage articular disc (TFCC) and had a right wrist arthroscopy with TFCC
debridement on January 3, 2017.
7

Also on December 13, 2019, OWCP issued a final overpayment determination, finding that appellant received an
overpayment of compensation in the amount of $1,028.45, for which she was at fault, for the period October 3
through 12, 2019 as she continued to receive wage-loss compensation following the termination of her benefits.

2

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified
orthopedic surgeon, related that appellant was seen in follow-up after a right wrist arthroscopic
procedure. He related that appellant had returned to work and was experiencing wrist pain when
working with a scanner. Dr. Braunstein concluded that appellant was doing well, with continued
pain on the ulnar side of her right wrist. 8
Appellant appealed to the Board on February 6, 2020.
OWCP subsequently received copies of medical reports previously of record, including
March 28 and November 5, and 9, 2017 reports from Dr. Klein, a May 4, 2018 report from
Dr. Braunstein, and the July 9, 2019 report from Dr. Sahasrabudhe. It also received a February 7,
2020 work status form, bearing an illegible signature, which indicated that appellant could return
to work on February 8, 2020.
Counsel also forwarded to OWCP a July 8, 2020 permanent impairment evaluation report
from Dr. Mesfin Seyoum, a family medicine specialist. In a report dated September 16, 2020,
Dr. Nathan Hammel, a Board-certified orthopedic surgeon acting as an OWCP medical adviser,
reviewed the record including Dr. Seyoum’s July 8, 2020 permanent impairment report.
On March 25, 2021 OWCP received duplicate copies of reports from Dr. Klein dated
November 5, 2017, and reports of Dr. Steingart dated November 13, 2018 and April 15, 2019,
previously of record.9
By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination
decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award beneﬁts, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).10
On May 14, 2021 appellant, through counsel, requested reconsideration of the October 3,
2019 termination decision.
By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 11 OWCP has discretionary authority in this regard and has imposed certain

8

On February 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

9

Also on March 25, 2021 OWCP denied appellant’s February 11, 2020 schedule award claim. See supra note 3.

10

The Board also affirmed in part and reversed in part the December 13, 2019 overpayment determination. Supra
note 5.
11

This section provides in pertinent part: The 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).

3

limitations in exercising its authority. 12 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. 13
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written request for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP. 14 Section 10.608(b)
provides that any request for reconsideration of the merits of the claim which does not meet at
least one of the requirements listed in section 10.606(b) will be denied by OWCP without review
of the merits of the claim. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the October 3, 2019 OWCP decision which terminated appellant’s
compensation benefits for refusal of suitable work, OWCP continued to receive additional medical
evidence, including a December 20, 2019 progress report by Dr. Braunstein and a February 7,
2020 work status form. However, it did not review or address this evidence in the June 1, 2021
decision.16
In the case of William A. Couch,17 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. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that OWCP reviewed any of the medical evidence
submitted after the October 3, 2019 decision.18
As the Board’s decisions are final with regard to the subject matter appealed,19 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
12

20 C.F.R. § 10.607.

13

See J.R., supra note 2; C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a).

14

Id. at § 10.606(b)(3).

15

Id. at § 10.608(b). 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.
16

See D.B., Docket No. 21-0693 (issued November 9, 2021).

17

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

18

See T.G., Docket No. 19-1930 (issued January 8, 2021).

19

See 20 C.F.R. § 501.6(d).

4

OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 20
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal. 21
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.22 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.23
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 17.
21

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

22

See M.J., Docket No. 18-0605 (issued April 12, 2019).

23

B.N., Docket No. 17-0787 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
ASSISTANT SECRETARY FOR MANPOWER,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-897
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated August 29 and November 9, 2007 and
January 18, 2008. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant has established that he had disability caused by
residuals of the accepted employment injury following the termination of compensation benefits
on September 30, 2006; and (2) whether the Office properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 43-year-old manpower development specialist, sustained a heart attack on
November 25, 1974. He filed a claim for benefits on January 28, 1975, which the Office

accepted the claim for acute myocardial infarction. Appellant was hospitalized and underwent
cardiac catheterization. He has not worked for the employing establishment since that time.1
In order to determine appellant’s current condition and to ascertain whether he still
suffered residuals from his accepted condition, the Office referred him for a second opinion
examination with Dr. Daniel J. Cassis, Board-certified in internal medicine and a specialist in
cardiology. In a September 29, 2004 report, Dr. Cassis stated:
“[Appellant’s] current conditions revealed that he is status post coronary artery
disease with bypass grafting as well as coronary artery angioplasty and coronary
artery stents. The etiology of [appellant’s] coronary are multifactorial. There is a
genetic predisposition to coronary atherosclerosis and it is of course aggravated
by various cardiovascular risk factors most of which [appellant] had, [including]
cigarette smoking, diabetes mellitus, hypertension and hyperlipedemia. These
were all pertinent risk factors that lead to develop enough coronary artery disease
and [appellant] had all of these at some time in his life in many events preceding
his initial presentation of chest pain in the 1970’s.
“[Appellant] first awakened with chest pain on November 25, 1974. It is true that
stress can raise someone’s blood pressure and heart rate and cause [him] to
develop enough angina pectoris if indeed they already have preexisting coronary
artery disease. The question as to whether or not stress can, has a mild to
moderate obstructive coronary lesion to proceed to a high grade obstruction has
been debated for some time. It is my feeling that the patient had preexisting
coronary artery disease that was aggravated by the extreme stress he was under.
“I would say he has no residual impairment secondary to the myocardial
infarction in 1974. I would say that he has no residual impairment from that
myocardial infarction as his overall fraction is quite good. The residual
impairment is not secondary to the myocardial infarction but to the fact that he
does have severe coronary artery disease.
“I feel that [appellant] can return to work which will require stressful situations
both mentally and/or physically. I feel that [appellant’s] condition is such that his
current level of functioning cannot be raised by any other request of medical or
surgical approaches.”
Dr. Cassis reiterated that appellant’s functional capacity was unlikely to improve through
any type of medical intervention, though he encouraged physical activity from an aerobic
standpoint. He recommended that appellant’s cardiovascular physician closely monitor his
condition.

1

Appellant continued to be gainfully employed in various private-sector positions until January 1991.

2

In an October 22, 2004 supplemental report, Dr. Cassis stated:
“[Appellant] has severe coronary artery disease and is unable to do manual work.
He could do sedentary work that is of low momentum and physical stress, work
that he could do for no more than two to three hours per day.”
On October 26, 2005 the Office issued a notice of proposed termination of compensation
to appellant. It found that the weight of the medical evidence, as represented by Dr. Cassis’
referral opinion, established that his accepted, employment-related myocardial infarction
condition had resolved.
By letters dated November 4, 2005, January 14, August 28 and September 1, 2006,
appellant contested the proposed termination on the grounds that his current condition prevented
him from performing any gainful work and that his current condition resulted from residuals of
his accepted myocardial infarction condition. He argued that he had been diagnosed with the
conditions of arteriosclerotic heart, hypertension, borderline diabetes, anxiety disorder and
hypercholesterolemia, all of which were caused by work-related stress and all of which were
causally related to his accepted myocardial infarction condition. Appellant did not submit any
new medical evidence.
By letter dated June 19, 2006, the Office asked Dr. Kamalakar T. Rao, Board-certified in
internal medicine, a specialist in cardiology and the attending physician, to review a copy of
Dr. Cassis’ reports. It asked Dr. Rao to state whether he agreed with Dr. Cassis that there was no
residual impairment stemming from the accepted 1974 myocardial infarction and that appellant’s
current condition was due to the progression of his underlying coronary artery disease. Dr. Rao
responded “yes” with a checkmark, indicating that he agreed with Dr. Cassis’ opinion.
By decision dated September 28, 2006, the Office terminated appellant’s compensation,
finding that Dr. Cassis’ opinion that represented the weight of the medical evidence.
By letter dated October 23, 2006, appellant requested a review of the written record.
By decision dated February 2, 2007, an Office hearing representative affirmed the
September 28, 2006 termination decision. However, he found that the record was unclear as to
whether appellant continued to have residuals from employment-related stress. The hearing
representative noted that, while the accepted myocardial infarction condition had resolved,
Dr. Rao continued to treat appellant for coronary artery disease and Dr. Cassis had indicated that
work-related stress had at least partly aggravated or contributed to this condition. The hearing
representative therefore remanded to the district Office to obtain a supplemental report from
Dr. Cassis to provide sufficient explanation and medical rationale regarding whether or not
appellant’s coronary artery disease could have been aggravated by his employment-related stress
and whether such aggravation was temporary or permanent.
In a June 13, 2007 report, Dr. Cassis stated:
“In regards to distress causing permanent or temporary aggravation of [appellant’s]
coronary artery disease, I would reply the following. Distress could very well have
increased the inflammation in his coronary arteries causing a previous mild
3

atheromatous plaque to rupture, and in doing so, the plaque could go from a 10 to 20
percent obstruction. This of course is impossible to prove at this point in time if it
did cause this permanent aggravation of [appellant’s] coronary artery disease.
Certainly, it could temporarily aggravate his coronary disease by increasing heart
rate and blood pressure therefore leading to myocardial ischemia and/or myocardial
infarction.”
In response to the Office’s query, “If permanent what objective findings/medical findings
would support this?” Dr. Cassis noted that this was a difficult question to answer definitively. He
stated:
“In general, a permanent aggravation of coronary artery disease would lead to
myocardial infarction and myocardial damage. This would in turn lead to a decrease
in contractility and left ventricular ejection fraction. The stress Cariolite scan
performed by Dr. Chalasani on April 17, 2007, revealed no myocardial ischemia.
There also was no objective evidence of a decrease in left ventricular fraction or wall
motion abnormality. From this study, I would summarize that there was no
permanent damage to the left ventricular that occurred during this stressful period
when his coronary artery disease was aggravated.”
In response to the Office’s query, “Is [appellant’s] coronary artery disease at the same level
it would have been had he not worked for [the employing establishment]?” Dr. Cassis stated:
“[Appellant’s] coronary artery disease [would have been] at the same level. It would
have been had [he] not worked for [the employing establishment]. Again this is
impossible to prove definitively, but as I mentioned … stress could have aggravated
[appellant’s] coronary artery disease by causing increased inflammation in coronary
arteries leading to a rupture of an atherosclerotic plaque. This in turn could cause a
10 to 20 percent obstruction to go to 80 to 90 percent obstruction in [a] relative[ly]
short period of time. Therefore, I would summarize that his coronary artery disease
would not have been at this level if he had not worked for [the employing
establishment] and been placed under severe stressful situations.”
By decision dated August 29, 2007, the Office found, based on Dr. Cassis’ supplemental
report, that appellant did not have residuals from employment-related stress or coronary artery
disease. It stated:
“This Office has accepted that stress caused a temporary aggravation of
[appellant’s] coronary artery disease, which resulted in your acute myocardial
infarction of November 25, 1974. Medical evidence states that you did not incur
heart damage from the myocardial infarction of that date. There is no substantive
and unequivocal medical opinion to suggest that your employment caused a
permanent aggravation of your coronary artery disease, your currently disabling
condition. Dr. Cassis does not provide any objective findings or conclusive
medical rationale for his opinion. His opinion is based on conjecture as to the
connection between your work and a permanent aggravation of coronary artery
disease. [Emphasis in original]. [Dr. Cassis’] explanation of the process

4

accurately describes a temporary aggravation, a fact already accepted by the
Office.”
By letter dated September 5, 2007, appellant requested reconsideration. He submitted an
August 17, 1993 employing establishment work restriction evaluation from Dr. Norberto
Schechtmann, in internal medicine and a specialist in cardiology. Dr. Schechtmann reiterated the
diagnoses of heart disease and myocardial infarction and stated that appellant could work an
eight-hour day with restrictions of no lifting or climbing, no more than one hour of walking,
bending, squatting, kneeling, twisting and standing and no more than four hours of sitting.
By decision dated November 9, 2007, the Office denied modification of the July 19, 2007
termination decision.
On November 20, 2007 appellant requested reconsideration. He did not submit any new
medical evidence with his request.
By decision dated January 18, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT--ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
Following a proper termination of compensation benefits, the burden of proof shifts back to
claimant to establish continuing employment-related disability.3
ANALYSIS --ISSUE 1
The Office in its September 28, 2006 decision remanded to the Office for a supplemental
report from Dr. Cassis, the Office’s second opinion physician, to explain whether or not
appellant’s coronary artery disease was aggravated by stressful work factors and if so, whether
this aggravation was temporary or permanent. Dr. Cassis opined in a June 13, 2007 report that
stressful work factors could have temporarily aggravated his coronary artery disease by increasing
heart rate and blood pressure, resulting in myocardial ischemia and/or myocardial infarction.
However, he stated that it was impossible to prove that employment factors could have caused a
permanent aggravation of the condition. Dr. Cassis noted that appellant underwent a stress test in
April 17, 2007 which revealed no myocardial ischemia and advised that there was no objective
evidence of a decrease in left ventricular fraction or wall motion abnormality. Based on these test
results, he concluded there was no permanent damage to the left ventricular that occurred during the
stressful period when his coronary artery disease was aggravated. Dr. Cassis advised that stress
could have aggravated appellant’s coronary artery disease by causing increased inflammation in
coronary arteries, leading to a rupture of an atherosclerotic plaque and increased obstruction
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

John F. Glynn, 53 ECAB 562 (2002).

5

within a short period of time; however, he stated that appellant’s coronary artery disease would
have reached the same level had he not worked for the employing establishment.
The Board finds that Dr. Cassis’ second opinion reports represented the weight of the
medical evidence and negated a causal relationship between appellant’s current condition and his
accepted employment injury. Dr. Cassis opined based on his examination and the objective
medical evidence of record that stressful work factors caused a temporary aggravation of
appellant’s coronary artery disease, which resulted in his acute 1974 myocardial infarction. He
did not conclude, however, that work factors caused a permanent aggravation of coronary artery
disease, appellant’s current condition. The Office properly found that appellant no longer had
any residuals from the accepted condition. The Board will affirm the July 19, 2007 decision.
Following the Office’s August 29, 2007 decision, appellant requested reconsideration and
submitted Dr. Schechtmann’s 1993 work restriction evaluation. This report which indicated that
appellant could work an eight-hour day with restrictions, did not constitute probative medical
opinion showing that appellant currently has any continuing disability or residuals from his
accepted condition. The Office merely provides an indication of appellant’s condition in 1993.
It does not provide an opinion as to whether his coronary artery disease is causally related to the
November 1974 employment injury and has no bearing on his current condition.
Dr. Schechtmann’s report did not constitute probative medical opinion showing that appellant
had any continuing disability or residuals from his accepted condition. His report is summary in
nature and merely states that appellant’s back condition and symptomatology was causally
related to the November 1974 employment injury; it does not provide a well-reasoned and
sufficiently supported opinion that would vitiate the Office’s August 29, 2007 determination that
appellant did not have any employment-related disability or residuals stemming from the
November 1974 work injury. Dr. Schechtmann’s report does not outweigh Dr. Cassis’ opinion
nor does it negate the Office’s finding that Dr. Cassis’ June 13, 2007 report represented the
weight of the medical evidence. Thus the Office properly found in its November 9, 2007
decision that appellant failed to submit medical evidence sufficient to modify the Office’s
August 29, 2007 termination decision.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.4 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.5

4

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

5

Howard A. Williams, 45 ECAB 853 (1994).

6

ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law. He did not advance a relevant legal argument not previously
considered by the Office. Appellant did not submit relevant and pertinent evidence not
previously considered by the Office. He did not submit any additional medical evidence in
connection with his November 20, 2007 reconsideration request. Thus, the request did not contain
any new and relevant evidence for the Office to review. In addition, appellant’s reconsideration
request contains arguments that are cumulative and repetitive of contentions that were presented
and rejected by the Office in previous decisions. The Board finds that the Office properly
refused to reopen appellant’s claim for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden to establish continuing disability.
The Board finds that the Office properly refused to reopen appellant’s case for reconsideration
on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2008 and November 9 and
August 29, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 13-1011
Issued: August 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 26, 2013 appellant filed a timely appeal from a March 6, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on December 13, 2012.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its March 6, 2013 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On December 17, 2012 appellant, then a 64-year-old application clerk, filed a traumatic
injury claim (Form CA-1) alleging that on December 13, 2012 she sustained a bump on the back
of her head, bruising and soreness in her lower back and left buttocks. She stated that she was
walking towards the entrance of the building at work and someone had just entered through the
door. Appellant tried to grab the door before it closed but the door was too heavy and knocked
her off her balance, causing her to fall backwards. She stated that she fell on her left buttocks
and hit the back of her head on a concrete garbage container near the door. Appellant stopped
work and first received medical care on December 13, 2012. The employing establishment
controverted the claim.
In an undated witness statement, appellant’s coworker stated that he was walking to the
entrance of the office building when he saw appellant on the ground, holding her head. She
informed him that she had tried to run and grab the door but was knocked over.
In a December 14, 2012 witness statement, Zohreh Mohammadi, stated that on
December 13, 2012 she was approaching the entrance of the building when she noticed appellant
on the ground. Appellant stated that she had hurt her head and back.
By letter dated January 23, 2013, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days.
In a January 7, 2013 emergency room (ER) report, Dr. Wilson Lem, Board-certified in
emergency medicine, reported that appellant presented to the ER for a follow up. Appellant
reported numbness in the left leg, right shoulder pain and a right finger injury. Dr. Lem noted
that these were old findings which started months to years ago and were still present with chronic
symptoms. He also noted that appellant presented to the ER one month ago for a fall and
possible syncope but that her workup was negative. Dr. Lem noted possible diagnoses of
ischemic stroke, subdural hematoma, subarachnoid hemorrhage, brain abscess, cord compression
and epidural abscess as a possible cause of weakness. He recommended that appellant follow up
with her primary care physician.
In a December 7, 2012 nursing note, Summer O’Hearn, a registered nurse (RN), reported
that appellant complained of left foot toe numbness as well as complaints of the back and right
shoulder. Appellant also complained of light-headedness, dizziness, blurred vision and left foot
numbness.
In a December 19, 2012 narrative statement, appellant restated the events surrounding her
December 13, 2012 injury.
By decision dated March 6, 2013, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her injury was causally related to the accepted
December 13, 2012 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.8

3

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

4

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

5

Elaine Pendleton, supra note 3.

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

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

8

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
OWCP accepted that the December 13, 2012 employment incident occurred as alleged.
The issue is whether appellant established that the incident caused her injuries. The Board finds
that she did not submit sufficient medical evidence to support that her head, back, leg and
buttocks condition are causally related to the December 13, 2012 employment incident.9 The
medical evidence is deficient on two grounds: (1) it fails to provide a firm diagnosis; and
(2) there is no narrative opinion on causal relationship between a diagnosed condition and the
employment incident.10
In a January 7, 2013 ER report, Dr. Lem reported that appellant presented to the ER with
numbness in the left leg, right shoulder pain and a right finger injury. He noted that these were
old findings which started months to years ago which were still present. Dr. Lem also stated that
appellant presented to the ER one month ago for a fall and possible syncope but that her workup
was negative. He provided possible diagnoses of ischemic stroke, subdural hematoma,
subarachnoid hemorrhage, brain abscess, cord compression and epidural abscess as a possible
cause of weakness. Dr. Lem recommended appellant follow up with her primary care physician.
The Board finds that the opinion of Dr. Lem is not well rationalized. Dr. Lem did not
provide a firm diagnosis or sufficient detail regarding appellant’s medical condition. He has not
identified a medical condition. Dr. Lem merely speculated possible diagnoses and recommended
appellant follow up with her primary care physician. Furthermore, while he noted that appellant
was in the ER for a fall a month ago, he provided no details regarding the circumstances of her
injury and stated that her workup was negative. 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 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the nature of the
relationship between the diagnosed condition and the established incident or factor of
employment.12 Thus, Dr. Lem’s report does not constitute probative medical evidence because
he failed to provide a clear diagnosis and did not adequately explain the cause of appellant’s
injury.13
Nurse O’Hearn’s report is also insufficient to establish appellant’s claim as nurses are not
considered physicians under FECA.14
9

See Robert Broome, 55 ECAB 339 (2004).

10

D.I., Docket No. 11-317 (issued December 12, 2011).

11

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

12

See Lee R. Haywood, 48 ECAB 145 (1996).

13

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

14

5 U.S.C. § 8101(2) provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).

4

Appellant’s honest belief that work caused her medical problem is not in question; but
that belief, however sincerely held, does not constitute the medical evidence necessary to
establish causal relationship. In the instant case, the record lacks rationalized medical evidence
establishing a causal relationship between the December 13, 2012 employment incident and
appellant’s injuries. Thus, appellant has failed to meet her burden of proof.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.15
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her head,
back, butt and leg injuries are causally related to the December 13, 2012 employment incident, as
alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

15

20 C.F.R. § 501.2(c)(1); supra note 2.

5