United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, WRIGHT-PATTERSON
AIR FORCE BASE, OH, Employer
__________________________________________

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

Docket No. 14-365
Issued: June 16, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant, through his attorney, filed a timely appeal from the
August 19, 2013 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 OWCP properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on April 5, 1988 appellant, then a 39-year-old aircraft electrician,
sustained an acute left shoulder sprain with fibrositis and left biceps tenosynovitis when he
slipped while descending a ladder and struck his left shoulder on an airplane hatch. He stopped
work on April 8, 1988 and returned to work on May 9, 1988. Appellant had periodic work
stoppages until being totally disabled from work beginning October 25, 1989. On April 18, 1991
he underwent a left rotator cuff repair and, on November 18, 1997, he had a left rotator cuff
repair with lateral clavical resection. OWCP authorized these procedures. From May 1994
through January 1998, appellant worked in various temporary positions in the private sector. He
stopped work in January 1998 and did not return to work for the employing establishment. On
August 15, 2000 appellant had an authorized left rotator cuff repair and, on January 6, 2006, he
had an authorized debridement for chronic left rotator cuff tear with bicep tenosynovitis.
In December 2007, appellant began to participate in vocational rehabilitation efforts.
Doris Graessle, appellant’s rehabilitation counselor, formulated a plan under which he would
undertake education and training designed to prepare him for work as a computer security
specialist or microcomputer support specialist. Appellant started participating in a training
program at the New Horizons Computer Learning Centers, Ohio Valley.
In 2009, appellant began to assert that his medical condition prevented him from
continuing with vocational rehabilitation efforts. In a July 15, 2009 note, Dr. Donald W. Ames,
an attending Board-certified orthopedic surgeon, discussed a July 7, 2009 nonwork-related motor
vehicle accident involving appellant. Subjective pain complaints were noted. Dr. Ames noted
that appellant reported missing school due to pain. He diagnosed sprain/strain of the rotator cuff,
pain in shoulder joint and diabetes mellitus and treated appellant with a left shoulder injection.2
Dr. Ames recommended physical therapy and advised appellant to follow up as needed.
By decision dated August 24, 2009, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. Appellant’s compensation would be based on the difference
between his pay rate as determined for compensation purposes and what his wage-earning
capacity would have been if he had cooperated with vocational rehabilitation efforts, i.e., his
wage-earning capacity as a computer security specialist. OWCP discussed the classes he missed
and failure to take a computer certification test. It found that these actions were not excused by
appellant’s medical condition or any other reason. In a February 4, 2011 decision, OWCP
affirmed its August 24, 2009 decision.
In a January 27, 2012 decision,3 the Board affirmed the February 4, 2011 decision noting
that OWCP properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his
2

In a July 21, 2009 note, Dr. Patrick Jonas, an attending Board-certified family practitioner, stated, “[Motor
vehicle accident], multiple injuries, no class/learning encounters until August 7, 2009.” In an August 4, 2009 note,
he disabled appellant from work through September 1, 2009. On August 17, 2009 Dr. Ames discussed appellant’s
ongoing subjective pain complaints. He opined that new magnetic resonance imaging (MRI) scan testing revealed
“no new injury seen.”
3

Docket No. 11-871 (issued January 27, 2012).

2

loss of wage-earning capacity had he continued to participate in vocational rehabilitation efforts.
The record reflected that appellant obstructed vocational rehabilitation efforts by repeatedly
missing training classes designed to qualify him to work in the computer field and by refusing to
take computer certification tests required for him to work in that field. In particular, appellant
refused to take a certification test in July 2009 which would have allowed him to complete his
training program and start a job search. The Board found that his concerns about the computer
field and his rehabilitation counselor did not justify his failure to continue participation in
vocational rehabilitation efforts. Appellant claimed that a medical condition prevented him from
participating in vocational rehabilitation efforts, particularly with regard to the effects of a
July 7, 2009 vehicle accident, but none of the physicians of record provided a rationalized
opinion, supported by specific findings, clearly showing that he was disabled from all activity or
that his medical condition prevented him from participating in vocational rehabilitation efforts,
including attending classes or taking tests.4 The Board referred to appellant’s successful training
efforts up until his refusal to continue cooperation and concluded that, but for his obstruction, he
would have been able to earn wages as a computer security specialist. The Board determined
that OWCP properly adjusted appellant’s compensation based on the wages of this position.
Appellant argued that OWCP improperly reduced his compensation in August 2009
under 5 U.S.C. § 8113(b). He also suggested that his current medical condition prevented him
from returning to participation in vocational rehabilitation efforts.
In a January 24, 2012 report, Dr. Gregory Fisher, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, diagnosed surgery (times four) for failed rotator cuff
repair of the left shoulder with evidence of osteoarthritis of the glenohumeral joint and a high
riding humeral head. He stated that this diagnosis was related to appellant’s accepted conditions
and surgeries. Dr. Fisher indicated that the left shoulder surgery recommended by Dr. Robert
Nowinski, an attending osteopath and Board-certified orthopedic surgeon, was medically
necessary to treat appellant’s left shoulder condition.
In an April 25, 2012 letter, Dr. Ames stated that he had treated appellant for years for
“severe problems with his left shoulder.” He discussed appellant’s left shoulder and arm
diagnoses and the left shoulder surgeries he underwent between 1991 and 2006. Dr. Ames stated
that appellant had been seen on January 24, 2012 by Dr. Fisher who recommended that he have
left shoulder surgery performed by Dr. Nowinski. He stated:
“It should be noted that [appellant] has had multiple injections, multiple surgeries
and multiple attempts at physical therapy. He has had to discontinue a
reeducation training program because he was unable to attend due to severe pain
about the shoulder. [Appellant] is not able to use his shoulder in a normal fashion
and because of his pain is unable to concentrate on further educational activities at
this time.”
In a May 2, 2012 report of an April 25, 2012 examination, Dr. Ames indicated that
appellant reported experiencing difficulty with sleeping, lifting, reaching forward, reaching out
4

The Board noted that the medical reports of record did not show a significant change in appellant’s objective
medical condition after his vehicular accident.

3

and working. Appellant noted feeling the same as his last visit four months prior. Dr. Ames
diagnosed several left shoulder conditions including osteoarthritis, sprain/strain of the rotator
cuff and shoulder joint pain.5 He described the steroid injection treatment he administered on
appellant’s left shoulder. Dr. Ames provided a similar description of appellant’s medical
condition in a July 30, 2012 report detailing a July 19, 2012 visit.
In a June 7, 2012 report, Dr. Nowinski diagnosed left shoulder arthropathy with recurrent
rotator cuff tear, left biceps tendon tear, left capsular contraction and retained hardware. He
recommended additional left shoulder surgery. On August 20, 2012 Dr. Nowinski performed a
left shoulder reversed total shoulder arthroplasty with Tornier size 42 glenosphere, latissimus
dorsi tendon transfer, rotator cuff reconstruction, biceps tenodesis and capsular contracture
release. The record also contains reports in which Dr. Nowinski and other attending physicians
described appellant’s recovery from surgery. In a July 2, 2013 report, Dr. Nowinski indicated
that appellant presented with a chief complaint of left shoulder pain. Examination of appellant’s
left shoulder showed mild global tenderness, lack of instability, intact neurovascular system, full
passive motion and 4/5 strength with limited effort. Dr. Nowinski indicated that appellant’s
surgical implant had good alignment and position without complications and no other surgical
care was needed.
Appellant submitted additional documents from 2012 and 2013, including surgery
request forms, physical therapy notes, medical prescriptions, nurse reports and laboratory results.
He also submitted documents showing that he was a Cisco Certified Entry Networking
Technician, valid through March 2, 2012.
In an August 19, 2013 decision, OWCP determined that it properly reduced appellant’s
compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts. It found that the medical evidence
dated in 2012 and 2013 did not establish that he was medically unable to participate in vocational
rehabilitation efforts when his compensation was adjusted in August 2009. OWCP also found
that the medical evidence did not clearly show that appellant’s medical condition in 2012 and
2013 prevented him from returning to vocational rehabilitation efforts at that time.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.6 Section 8113(b) of FECA
provides that if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of the individual

5

Dr. Ames indicated that appellant’s left rotator cuff exhibited severe weakness on examination.

6

Betty F. Wade, 37 ECAB 556, 565 (1986).

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in accordance with what would probably have been his [or her] wage-earning capacity in the
absence of the failure,” until the individual in good faith complies with the direction of it.7
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. It will determine this amount in accordance with the job identified
through the vocational rehabilitation planning process, which includes meetings
with OWCP nurse and the employ[ing] [establishment]. The reduction will
remain in effect until such time as the employee acts in good faith to comply with
the direction of OWCP.”8
As medical questions that can only be resolved by medical opinion evidence, the reports of a
nonphysician (such as a nurse or physical therapist) cannot be considered by the Board in
adjudicating such matters.9
ANALYSIS
OWCP accepted that on April 5, 1988, appellant sustained an acute left shoulder sprain
with fibrositis and left biceps tenosynovitis due to slipping while descending a ladder and hitting
his left shoulder on an airplane hatch. He last worked in January 1998 and has not returned to
work for the employing establishment. Beginning in 1991, appellant underwent several left
shoulder surgeries which were authorized by OWCP.
By decision dated August 24, 2009, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. In a February 4, 2011 decision, it affirmed its August 24, 2009
decision. In a January 27, 2012 decision,10 the Board affirmed the February 4, 2011 decision
noting that OWCP properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to
reflect his loss of wage-earning capacity had he continued to participate in vocational
rehabilitation efforts.
Following the prior appeal, appellant contended that OWCP improperly reduced his
compensation under 5 U.S.C. § 8113(b) in August 2009. He suggested that his current medical
condition prevented him from participating in vocational rehabilitation efforts. The Board finds
7

5 U.S.C. § 8113(b).

8

20 C.F.R. § 10.519(a).

9

Arnold A. Alley, 44 ECAB 912, 920-21 (1993).

10

Supra note 3.

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that the evidence submitted by appellant does not show that OWCP improperly reduced his
compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts. The more recent medical evidence
submitted by appellant describes his medical condition in 2012 and 2013 and therefore is not
relevant to his claim that his medical condition in mid-2009 prevented him from continuing his
participation in vocational rehabilitation efforts at that time. As discussed by the Board in its
January 27, 2012 decision, appellant had not previously submitted rationalized medical evidence
showing that his medical condition justified his stopping of vocational rehabilitation efforts in
mid-2009. Moreover, although the medical evidence shows that he continued to have left
shoulder problems in 2012 and 2013, the new evidence submitted by appellant does not contain a
clear, rationalized opinion that he was medically prohibited from returning to a vocational
rehabilitation program in 2012 or 2013.
In a January 24, 2012 report, Dr. Fisher, a Board-certified orthopedic surgeon serving as
an OWCP referral physician, diagnosed surgery (times four) for failed rotator cuff repair of the
left shoulder with evidence of osteoarthritis of the glenohumeral joint and a high riding humeral
head. He recommended that appellant undergo left shoulder surgery. However, Dr. Fisher’s
report is of limited probative value on the relevant issue of the present case because he did not
provide any opinion that appellant could not engage in vocational rehabilitation efforts.
In an April 25, 2012 letter, Dr. Ames, an attending Board-certified orthopedic surgeon,
indicated that it had been recommended that appellant undergo left shoulder surgery. He noted
that appellant underwent multiple injections, surgeries and multiple attempts at physical therapy
and stated:
“[Appellant] has had to discontinue a reeducation training program because he
was unable to attend due to severe pain about the shoulder. He is not able to use
his shoulder in a normal fashion and because of his pain is unable to concentrate
on further educational activities at this time.”
The Board notes that this letter does not provide sufficient medical opinion that appellant
could not engage in any vocational rehabilitation efforts. Dr. Ames did not explain how
objective findings on physical examination and diagnostic testing prevented appellant from
engaging in the limited requirements of vocational rehabilitation activities, such as
communicating with a vocational rehabilitation counselor or engaging in retraining. In a
May 2, 2012 report of an April 25, 2012 examination, he noted that appellant had some left
shoulder limitations, such as left rotator cuff weakness, but he did not indicate that he was
prohibited from all activity. Dr. Ames provided a similar description of appellant’s medical
condition in a July 30, 2012 report detailing a July 19, 2012 visit.
On August 20, 2012 Dr. Nowinski, an attending osteopath and Board-certified orthopedic
surgeon, performed several surgical procedures on appellant’s left shoulder. However, neither
he nor other attending physicians who treated appellant in the postsurgery period provided a
clear opinion that appellant could not return to vocational rehabilitation efforts for any specific
period. The medical evidence indicates that appellant’s left shoulder surgery was successful and
left him with few left shoulder deficits. Appellant submitted numerous additional documents
from 2012 and 2013 including surgery request forms, physical therapy notes, medication records,

6

nurse reports and laboratory results. However, these documents produced by nonphysicians do
not constitute probative medical evidence with respect to the medical question of whether
appellant was physically capable of participating in vocational rehabilitation efforts.11
For these reasons, the evidence submitted by appellant does not establish that OWCP
improperly reduced his compensation under 5 U.S.C. § 8113(b) to reflect his loss of
wage-earning capacity had he continued to participate in vocational rehabilitation efforts.12
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2014
Washington, DC

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

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

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

11

See supra note 9.

12

Moreover, appellant’s successful training efforts up until his refusal to continue cooperation showed that, but
for his obstruction, he would have been able to earn wages as a computer security specialist. OWCP properly
adjusted his compensation based on the wages of this position. See supra note 7.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.F., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, U.S. PARK
POLICE, GATEWAY NATIONAL
RECREATION AREA, Staten Island, NY,
Employer
__________________________________________

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

Docket No. 12-281
Issued: June 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 23, 2011 appellant filed a timely appeal from a June 3, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing. As the
most recent merit decision of OWCP was issued on April 15, 2011, more than 180 days from the
date of appeal,1 the Board has no jurisdiction over the merits of the claim pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3(d)
ISSUE
The issue is whether OWCP properly denied a request for an oral hearing.
1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

On appeal, appellant asserts that the medical evidence of record is sufficient to establish
his traumatic injury claim.
FACTUAL HISTORY
On August 23, 2010 appellant, then a 32-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right knee injury that day while performing a
physical efficiency agility test.
Dr. Joseph J. Giovinazzo, an attending Board-certified orthopedic surgeon, submitted
reports from September 29, 2010 to January 12, 2011 noting limited right knee flexion and a
history of prior right knee surgery in 2008. A December 10, 2010 MRI (magnetic resonance
imaging) scan showed a complete tear of the anterior cruciate ligament and degenerative joint
disease.
In a March 2, 2011 letter, OWCP advised appellant of the additional evidence needed to
establish his claim. It requested medical evidence supporting a causal relationship between the
August 23, 2010 agility test and the claimed right knee injury.
In a March 23, 2011 report, Dr. Giovinazzo recommended arthroscopic right knee
surgery.3
By decision dated April 15, 2011, OWCP denied the claim on the grounds that causal
relationship was not established. It accepted that the August 23, 2010 incident occurred at the
time, place and in the manner alleged, but OWCP found that the medical evidence did not
provide a rationalized opinion explaining how or why the incident caused a right knee injury.
In a letter dated April 26, 2011, appellant requested an oral hearing. He enclosed a
duplicate copy of Dr. Giovinazzo’s March 23, 2011 report.
By decision dated June 3, 2011, OWCP denied appellant’s request for a hearing on the
grounds that it was not timely filed within 30 days of the April 15, 2011 decision. OWCP further
denied appellant’s request as the issue in the case could be addressed equally well pursuant to a
valid request for reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA states unequivocally that a claimant not satisfied with a
decision of OWCP has a right, upon timely request, to a hearing before an OWCP
representative.4 Section 10.615 of Title 20 of the Code of Federal Regulations provide that a

3

Appellant also submitted a computer disc containing copies of Dr. Giovinazzo’s reports and the December 10,
2010 MRI scan already of record.
4

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

2

hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the
claimant can choose between two formats: An oral hearing or a review of the written record.5
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of
the request.6 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.7 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.8
ANALYSIS
Appellant claimed that he injured his right knee on August 23, 2010 during an agility
training exercise at work. On April 15, 2011 OWCP denied the claim as the medical evidence
was insufficient to establish causal relationship. Appellant had 30 days from the date of that
decision, or until Monday, May 16, 2011, to make a timely request for a hearing.9 His letter
requesting an oral hearing was postmarked on May 17, 2011, after the 30-day time period had
elapsed. OWCP properly found that appellant’s request for an oral hearing was not timely filed
under section 8124(b)(1) of FECA and that he was not entitled to a hearing as a matter of right.
OWCP exercised its discretion and denied appellant’s request for a hearing on the
additional grounds that he could address the causal relationship issue in his case equally well by
submitting relevant evidence accompanying a written request for reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
April 15, 2011 decision, the Board finds that OWCP did not abuse its discretion in denying
appellant’s untimely request for an oral hearing.10
On appeal, appellant asserts that the medical evidence of record is sufficient to establish
his traumatic injury claim. As stated above, the Board does not have jurisdiction over the merits
of the case on the present appeal.

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

8

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

9

The 30th day from Friday, April 15, 2011 was Sunday, May 15, 2011. The Board has held that, in computing a
time period, the date of the event from which the designated period of time begins to run shall not be included while
the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday. John B.
Montoya, 43 ECAB 1148 (1992). The first regular business day after Sunday, May 15, 2011 was Monday,
May 16, 2011.
10

See Gerard F. Workinger, 56 ECAB 259 (2005).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2011 is affirmed.
Issued: June 14, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
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and
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DEPARTMENT OF THE ARMY,
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INSTALLATION MANAGEMENT
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COMMAND, Fort Drum, NY, Employer
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___________________________________________ )
D.G., Appellant

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

Docket No. 14-0715
Issued: June 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2014 appellant filed a timely appeal from an August 29, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the filing of this appeal and the last merit decision, issued on July 18, 2012 and
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

The record contains February 24 and April 9, 2014 OWCP nonmerit decisions denying reconsideration of the
July 18, 2012 OWCP decision. The Board and OWCP cannot simultaneously exercise jurisdiction over the same
issue. See 20 C.F.R. § 501.2(c)(3). As OWCP issued its decision while the Board has jurisdiction over the matter in
dispute, they are null and void. See Lawrence Sherman, 55 ECAB 35 (2004); Russell E. Lerman, 43 ECAB 770
(1992); Douglas E. Billings, 41 ECAB 880 (1990).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 7, 2009 appellant, then a 56-year-old office aid, filed a traumatic injury claim
alleging that on April 3, 2009 he sustained back pain while cutting grass, bending and lifting at
work. He did not stop work. The employing establishment noted that no injury was reported at
the time and that appellant never notified his supervisors of an injury. It also noted that he was
on medical restrictions at the time of the claimed injury.
In a September 23, 2009 memorandum, Robert Sillik, the Chief of Facility Management,
indicated that the claim was given to him on September 15, 2009 and listed April 3, 2009 as the
date of injury. This date of injury was three days after appellant had been assigned to work for
Mr. Sillik. Appellant did not notify Mr. Sillik that he had been injured or needed medical
treatment. Mr. Sillik stated that management advised appellant to observe his existing
restrictions, which included a five-minute break every hour, no repetitive elbow movements, and
no pushing, pulling, lifting of more than 20 pounds for no more than two hours at a time.
On October 14, 2009 OWCP asked that appellant respond to Mr. Sillik’s comments,
further explain how his injury occurred, and submit medical evidence addressing causal
relationship.
In a November 10, 2009 statement, appellant related that his pain began the day he
started spot painting which also involved scraping, filling holes, and sanding. He related that
most of the spots were overhead such that it required a lot of bending or stretching. Appellant
noted telling managers about his pain the first time he mowed the grass. He stated that he
complained that the tractor used for mowing was very bad on his back. Appellant indicated that,
since he began his job, it involved about “99 percent” regular maintenance instead of light
maintenance. He explained that he did not have “all this pain before I started” and now he had it
constantly because of bending, stretching, and cutting grass on the tractor, instead of a lawn
mower. Appellant advised that he requested a traumatic injury claim form in August, but did not
get one until he asked a different manager.
Appellant also submitted medical evidence. This included a July 30, 2009 report from
Dr. Edward N. Powell, a Board-certified orthopedic surgeon, who advised that appellant reported
pain from between his shoulder blades down to his low back “ever since he went back to work.”
Appellant also indicated to Dr. Powell that he should not be working due to elbow pain caused
by his work. He attributed his back pain to entering and exiting vehicles and the bumping of the
vehicles. Dr. Powell stated that there was no specific injury to appellant’s back. Appellant noted
having previous back pain that was related to chronic pancreatitis, but appellant related that his
current pain was caused by work. Dr. Powell reported an impression of back pain with no hard
neurologic signs. In an August 20, 2009 treatment note, he advised that a lumbar magnetic
resonance imaging (MRI) scan showed “just a little bit of a degenerative disc.” Dr. Powell
indicated that there was not “much to do, except symptomatic care.”

2

By decision dated November 18, 2009, OWCP denied appellant’s claim as he did not
establish an injury as alleged. It found that the evidence did not substantiate that the actual event
occurred as alleged.
On September 23, 2010 appellant requested reconsideration and submitted additional
evidence.
In an October 28, 2010 memorandum, Mr. Sillik advised that, when appellant reported
for work on March 30, 2009, he stated that he had upcoming medical appointments for prior
injuries and also provided a work capacity evaluation showing his limitations. He reiterated that
appellant was told not to violate his restrictions. Mr. Sillik explained that he tried to assign
appellant computer duties but appellant indicated that he did not know how to use a computer.
Because of this appellant was assigned light maintenance duties. Mr. Sillik noted that, even
when appellant was assigned to cut grass with the riding lawn mower, he was told to take breaks
as needed.
In a December 5, 2010 letter, appellant contended that certain physical exertions entailed
in spot painting caused his back pain. He noted that he had to cut grass on a small tractor, which
had no shocks which caused his back to hurt, and not a riding lawn mower. Appellant contended
that, before September 15, 2009, he performed regular maintenance, not light maintenance. He
indicated that his job was structured to allow for 40 percent light maintenance, not 100 percent
regular maintenance. Appellant asserted that he was forced to take a job he was not qualified for
and that this caused his pain. He further asserted that Mr. Sillik lied about aspects of his claim
because he had filed complaints about Mr. Sillik.
In a decision dated December 22, 2010, OWCP modified the November 18, 2009
decision to reflect that, while the factual component of fact of injury had been established, the
claim was denied for failure to establish the medical component of fact of injury. It noted that
the treating physician did not connect the back condition to his employment.
Appellant submitted additional evidence and requested reconsideration on February 14,
September 12, 2011 and April 16, 2012. OWCP denied modification in decisions dated May 23,
November 15, 2011 and July 18, 2012, finding that the medical evidence was insufficient to
establish his claim.3
On July 7, 2013 appellant requested reconsideration. He argued that a breach of contract
existed because the employing establishment forced him to sign an agreement to take a job.
Appellant indicated that the contract was broken because his duties were supposed to be 60
percent clerical and 40 percent maintenance. He explained that he was supposed to work with a
small riding lawn mower and instead was given a tractor, which had no shock absorbers and was
a primary reason for his back pain. Appellant asserted that he should receive full compensation
since the end of his job.

3

In support of his April 16, 2012 reconsideration request, appellant submitted a November 29, 2011 treatment
note from Dr. Powell who opined that “mowing and work probably did not cause” his arthritis but it “might have
precipitated the symptoms.” Dr. Powell noted that it was “hard to prove from a medical standpoint.”

3

In a decision dated August 29, 2013, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
Section 10.608(b) provides that any application for review 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.6
ANALYSIS
Appellant disagreed with the denial of his traumatic injury claim and timely requested
reconsideration on July 7, 2013. The underlying issue on reconsideration is medical in nature,
whether the April 3, 2009 work incident caused or contributed to an injury.
On reconsideration, appellant argued that a breach of contract existed because the
employing establishment forced him to sign an agreement regarding a job.7 Additionally, he
argued that the contract was broken because he had been promised duties that were 60 percent
clerical and 40 percent maintenance. Appellant explained that he was supposed to work with a
small riding lawn mower and instead was given a tractor which had no shock absorbers. OWCP
denied the claim because the medical evidence did not contain medical opinion evidence
explaining how his back condition was caused or aggravated by specific factors of his
employment.8 Appellant made arguments about his duties and the employing establishment’s
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b).

6

Id. at § 10.608(b).

7

Although appellant makes references to signing an agreement regarding a job, he did not submit a copy.

8

See for example, A.D., 58 ECAB 149 (2006).

4

personnel practices. He did not sufficiently explain how this demonstrated a legal error by
OWCP or how it advanced a relevant legal argument not previously considered by OWCP. The
Board has held that the submission of evidence which does not address the particular issue
involved is not a basis on which to reopen a case.9
Furthermore, appellant did not submit new and relevant medical evidence addressing
whether his employment contributed to his claimed condition. As noted, OWCP accepted that
appellant was performing certain job duties. The reason it denied the claim was that the medical
evidence did not sufficiently explain how particular job duties caused or contributed to his
claimed back condition. To have his claim reopened for a merit review, appellant needed to
submit new medical evidence addressing how his job duties caused or contributed to a diagnosed
medical condition.
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or
constitute new and relevant evidence not previously considered.
On appeal, appellant argues that he felt that he was being called a “liar or a cheat” every
time his claim was denied. He argued that his physician indicated that it was possible for the
tractor and grass cutting to cause pain in his back. Appellant asserted that his job was not a
genuine position but was an odd-lot sheltered employment position and that OWCP mishandled
his claim. The Board does not have jurisdiction to review the merits of the case. These
arguments go to the substantive issues of the claim. The issue on appeal is not whether
appellant’s claim is compensable but whether OWCP erred by declining to review that issue.
Appellant did not submit any evidence or argument in support of his reconsideration request that
warranted reopening of his claim for a merit review under section 8128(a).
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).

9

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 13-861
Issued: July 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 27, 2013 appellant filed a timely appeal from the February 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left knee injury in the performance of duty.
FACTUAL HISTORY
On August 3, 2012 appellant, a 65-year-old transportation security screener, filed an
occupational disease claim alleging that he twisted a ligament in his left knee as a result of his
federal employment. He stated: “Pain increased at work on July 26, 2012.”
1

5 U.S.C. § 8101 et seq.

Appellant saw Dr. Sunil Patel, a specialist in internal medicine, on July 30, 2012.
Dr. Patel related that the incident occurred five to seven days earlier at work. “The mechanism
was a twisting injury.” Left knee pain was present, moderate, aching, and had been fluctuating
since onset. There was an associated loss of motion. Symptoms were aggravated by movement
and weight bearing.2 Diagnoses included “pain in joint, lower leg.”
Appellant saw Dr. Patel again on August 6 and September 5, 2012. His knee pain was
better and he was released to return to regular duty.
In an October 30, 2012 decision, OWCP denied appellant’s occupational disease claim.
It found that the work events occurred as described but that appellant submitted insufficient
medical evidence. OWCP noted that pain was not a firm diagnosis of a medical condition but a
symptom. In addition to a diagnosed medical condition for his left knee, it advised that appellant
needed to submit medical evidence addressing how the employment incident or events caused
the diagnosed condition.
Appellant requested reconsideration and submitted a January 9, 2013 report from
Dr. David J. Mehl, a Board-certified orthopedic surgeon and consultant to Dr. Patel. Dr. Mehl
noted that appellant had a twisting injury to his left knee on July 23, 2012 while at work. On
physical examination, appellant had specific medial joint line tenderness with a positive
McMurray’s test to stressing of the medial meniscus. X-rays showed some mild spurring and
mild joint space narrowing in all three compartments. Dr. Mehl diagnosed mild preexisting left
knee degenerative joint disease and “work injury -- probable left knee medial meniscus tear.” He
stated that it was a work-related injury as documented initially by Dr. Patel.
An imaging study obtained on January 9, 2013, showing three views of the left knee,
revealed moderate degenerative joint disease manifested by joint space narrowing, subchondral
sclerosis and/or subchondral cyst formation and marginal osteophytes, most severe in the medial
compartment.
In an unsigned report dated January 23, 2013, Dr. Mehl advised that a magnetic
resonance imaging (MRI) scan obtained on January 15, 2013 showed a large Baker’s cyst and a
medial meniscus posterior horn tear. “It is my opinion that this tear and cyst resulted from the
work injury.” He added that it was “definitely” his opinion that the tear and cyst occurred from
his work injury.
In a decision dated February 14, 2013, OWCP reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that the medical evidence did not establish
that the diagnosed conditions were related to appellant’s federal employment.
On appeal, appellant contends that there is no basis for disregarding Dr. Mehl’s opinion
on causal relationship.

2

Appellant was noted to be five-foot nine and 282 pounds.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. 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.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
Appellant filed an occupational disease claim stating that he twisted a ligament in his left
knee at work. He did not explain how. It remains unclear what activity appellant was
performing when he twisted his knee. He stated only that “pain increased at work on
July 26, 2012.” From the claim form that appellant filed, it would appear that no incident in
particular occurred on July 26, 2012. Rather, the nature of his claim is that his left knee
condition developed over time.9 OWCP does not dispute that appellant performed the duties of
his transportation security screener position. The question that arises is whether those duties
caused the large Baker’s cyst and medial meniscus posterior horn tear in his left knee.
Dr. Patel, the specialist in internal medicine, described the mechanism of injury as a
twisting injury. He was not specific about what happened. Dr. Patel identified no activity at
work that might be responsible. He did not provide a firm diagnosis of appellant’s left knee
condition, and he offered no clear opinion on whether appellant’s left knee condition was

3

5 U.S.C. § 8102(a).

4

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

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

An occupational disease or illness refers to a condition produced by the work environment over a period longer
than a single workday or shift. 20 C.F.R. § 10.5(q).

3

causally related to his duties at work. The Board finds that Dr. Patel’s reports are of diminished
probative value on causal relationship.
Dr. Mehl, the consulting orthopedic surgeon, stated that appellant suffered a traumatic
injury. He noted that appellant had a twisting injury to his left knee on July 23, 2012 while at
work. Like Dr. Patel, he identified no particular work activity. Dr. Mehl stated only that
appellant had a “work injury.”
In the case of Kathrine W. Brown,10 the claimant stopped work on the advice of her
physician, who found that the claimant’s duodenal ulcer, chronic cholecystitis and chronic colitis
were due or greatly aggravated by working conditions. The Board found that the medical
evidence was insufficient, in the absence of a recital of the factual history and medical rationale
upon which the conclusion rested, to support an award of compensation. The Board noted that
the actual circumstances upon which the physician predicated his conclusion “are not
determinable since the report does not contain a recital of those circumstances.”
Dr. Mehl did not recite the factual circumstances upon which he based his conclusion. In
his January 9, 2013 report, he did not provide any rationale for his conclusion that “probable left
knee medical meniscus tear “was causally related to the implicated factors of appellant’s federal
employment.” In an unsigned January 23, 2013 report, Dr. Mehl made clear his opinion that
appellant’s large Baker’s cyst and a medial meniscus posterior horn tear “resulted from the work
injury,” but he did not describe the work injury. He did not explain how, from an orthopedic or
biomechanical point of view, the July 23, 2012 incident at work -- whatever that incident was -caused a large Baker’s cyst or a torn meniscus.11
Medical conclusions based on inaccurate or incomplete histories are of little probative
value.12 Medical conclusions unsupported by rationale are also of little probative value.13
Dr. Mehl did not demonstrate his understanding of the physical demands of appellant’s
transportation security screener position, or describe what appellant was doing at work when he
twisted his knee on July 23, 2012. His opinion is of diminished probative value. Further,
Dr. Mehl did not discuss how the Baker’s cyst and torn meniscus arose from any specific work
activity. He did not explain how he was able to determine that these conditions did not arise
from the natural progression of appellant’s preexisting condition and habitus but rather were
precipitated by something that happened at work.
The Board finds that appellant has not met his burden of proof to establish the critical
element of causal relationship. The medical opinion evidence that supports his claim for
10

10 ECAB 618 (1959).

11

Please note that reports that are unsigned or that bear illegible signatures cannot be considered probative
medical evidence because they lack proper identification. E.g., Thomas L. Agee, 56 ECAB 465 (2005).
12

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
13

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

compensation is based on an incomplete history of what happened at work and does not provide
sound medical reasoning to explain how what happened at work caused the left knee conditions
that are diagnosed.
The Board will affirm OWCP’s February 14, 2013 decision denying appellant’s claim for
workers’ compensation benefits. Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a left knee injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING, Washington, DC,
Employer
__________________________________________

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

Docket No. 20-1489
Issued: March 29, 2021

Case Submitted on the Record

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

JURISDICTION
On August 6, 2020 appellant filed a timely appeal from a July 22, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1

Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted because a supervisor
allegedly falsified an injury report to conceal his absence from duty. The Board, in exercising its discretion, denies
appellant’s request for oral argument because the arguments on appeal can adequately be addressed in a decision based
on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not
serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.

Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.3
ISSUE
The issue is whether appellant has met his burden of proof to establish that a traumatic
incident occurred in the performance of duty on April 28, 2020, as alleged.
FACTUAL HISTORY
On June 10, 2020 appellant, then a 57-year-old boiler plant operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 28, 2020 he injured his left knee when he struck
it on a pipe while in the performance of duty. He also alleged a subsequent occupational right
ankle sprain while using a cane from physical therapy on an unspecified date. On the reverse side
of the claim form appellant’s supervisor checked a box marked “Yes” to indicate his belief that
appellant was in injured while in the performance of duty, but noted that he had been unaware of
appellant’s participation in physical therapy or that he ambulated with a cane while at work.
Appellant stopped work on May 12, 2020.
On June 10, 2020 OWCP received a May 26, 2020 authorization for examination and/or
treatment (Form CA-16) completed by the employing establishment.
In a development letter dated June 15, 2020, OWCP advised appellant of the deficiencies
of his claim and instructed him as to the factual and medical evidence necessary to establish his
claim. It attached a questionnaire seeking a full description of the events and circumstances
surrounding the alleged April 28, 2020 employment incident. OWCP afforded him 30 days to
provide the necessary information.
In response, appellant provided a June 17, 2020 telemedicine report by Dr. Idris Amin, a
doctor Board-certified in physiatry and sports medicine, who related appellant’s account of an
April 21, 2020 left knee injury while at work. He noted appellant’s complaints of left knee pain,
swelling, and instability. Dr. Amin also noted that appellant participated in physical therapy and
that his therapist prescribed crutches due to left knee instability. On visual examination, he
observed swelling of the left knee, extension limited to zero degrees, and flexion limited to 100
degrees. Dr. Amin recommended over-the-counter medication and ordered an imaging study.
In a report dated June 19, 2020, Dr. Emily Jo Durance, a podiatrist, noted appellant’s
account of an April 21, 2020 occupational left knee injury when he tripped on his cane on
April 282020, and an April 29, 2020 injury to when he twisted his right ankle on April 29, 2020
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the July 22, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

causing a right ankle sprain. She diagnosed a right ankle sprain with edema and held appellant off
work. Dr. Durance prescribed a brace.
A June 25, 2020 magnetic resonance imaging (MRI) scan of the left knee demonstrated
quadriceps tendinopathy with a partial tear, focal full-thickness articular cartilage loss on the
median patellar surface, trace suprapatellar joint effusion, moderate suprapatellar soft tissue
edema, and moderate edema in the patella likely from a prior contusion.
Appellant also provided physical therapy treatments notes and appointment slips dated
from June 23 through July 16, 2020. He filed claims for compensation (Form CA-7) for work
absences from June 20 through July 18, 2020.
By decision dated July 22, 2020, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the injury and/or events occurred as
he described. It noted that he had not completed its June 15, 2020 development questionnaire or
provided information clarifying the alleged April 28, 2020 employment incident. Additionally,
appellant indicated to Dr. Amin that the injury occurred on April 21, 2020, which was inconsistent
with the April 28, 2020 date of injury noted on his claim form. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8

4

Supra note 2.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

3

Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, and place, and in the manner alleged.9 Second,
the employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.11
The employee has not met his burden of proof in establishing the occurrence of an injury when
there are inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.12
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established. An employee’s statements alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on April 28, 2020, as alleged.
Appellant has not established the factual component of his claim as he has insufficiently
explained how and where the claimed injury occurred.14 In his June 10, 2020 Form CA-1, he
indicated that he injured his left knee on April 28, 2020, when he struck it against a pipe, and
sprained his right ankle on an unspecified date when he tripped on a cane provided by a physical
therapist. (RD 6/10/20) However, on June 17, 2020, he told Dr. Amin that he had been injured on
April 21, 2020 in an unspecified work incident, and on June 19, 2020, explained to Dr. Durance
that he injured his left knee while at work on April 21, 2020, and sprained his right ankle when he
tripped on his cane on April 28, 2020 and again twisted his right ankle on April 29, 2020.
The Board finds that appellant’s description of the incident in his Form CA-1 is
inconsistent with his statements to his treating physicians. Appellant’s varying descriptions of the
9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

14

See supra note 12.

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date and circumstances of the claimed injury do not establish a singular account of the mechanism
of injury.15 Further, the history of injury he related to his medical providers further detailed
inconsistent descriptions of the mechanism of injury. As appellant has not provided a consistent
description of the alleged employment incident and the mechanism by which he sustained an
injury, the Board finds that he has not met his burden of proof.16
As appellant has not met his burden of proof to establish that the April 28, 2020 incident
occurred in the performance of duty, as alleged, it is unnecessary to address the medical evidence
of record regarding causal relationship.17
On appeal, appellant contends that an employing establishment supervisor had falsified a
statement to conceal that he had been sleeping while on duty. The Board notes, however, that
appellant did not specify the statement with which he disagreed or provide evidence that it was
erroneous.
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 10.607.18
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on April 28, 2020 as alleged.

15

16

Id.

H.D., Docket No. 15-1698 (issued May 4, 2016).

17

J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23,
2015); Alvin V. Gadd, 57 ECAB 172 (2005).
18

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 29, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Rouses Point, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 19-1028 and
20-0975
Issued: June 12, 2020

Case Submitted on the Record

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

On April 10, 2019 appellant, through counsel, filed a timely appeal from a February 22,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP), in File No.
xxxxxx515, which the Clerk of the Appellate Boards docketed as No. 19-1028. On the same date
appellant also timely appealed from a March 15, 2019 merit decision, in File No. xxxxxx028,
which the Clerk of the Appellate Boards docketed as No. 20-0975.
On November 25, 2012 appellant, then a 48-year-old special agent/criminal investigator,
filed a traumatic injury claim (Form CA-1) alleging that he injured his right shoulder while
exercising in the performance of duty.2 By decision dated November 15, 2012, OWCP denied

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

This claim was assigned OWCP File No. xxxxxx028.

appellant’s traumatic injury claim. Following multiple requests for reconsideration, by decision
dated March 15, 2019, OWCP denied modification of its denial.
On February 16, 2016 appellant filed an occupational disease claim (Form CA-2) alleging
that he developed numbness and pain in his right hand, forearm, and elbow due to factors of his
federal employment.3 By decision dated May 18, 2016, it denied appellant’s claim. Appellant
subsequently exercised his appeal rights. Ultimately, by decision dated February 22, 2019, a
hearing representative affirmed the denial of the occupational disease claim noting that appellant
had a history of bilateral shoulder surgeries under OWCP File No. xxxxxx028, which appellant’s
physician failed to consider when addressing the cause of his current right upper extremity
condition(s). The hearing representative recommended that OWCP File Nos. xxxxxx028 and
xxxxxx515 be administratively combined.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issue(s) depends on frequent cross-referencing between files.4 For
example, if a new injury is reported for an employee who previously filed a claim for a similar
condition or the same part of the body, doubling is required.5 Here, appellant filed two claims
involving his right upper extremity. OWCP’s hearing representative indicated in the February 22,
2019 decision in OWCP File No. xxxxxx515 that she reviewed medical evidence in OWCP File
No. xxxxxx028 in reaching her decision and recommended that the claims be combined. However,
the claims were not combined at the time of the hearing and have yet to be combined. Therefore,
the Board is unable to review the necessary information upon which the hearing representative
relied.6
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine File Nos. xxxxxx515 and xxxxxx028. Following this and such further development as it
deems necessary, OWCP shall issue a de novo decision. Accordingly,

3

This claim was assigned OWCP File No. xxxxxx515.

4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); see also R.S., Docket No. 19-0416 (issued November 26, 2019).
5

Id.; E.P., Docket No. 18-1333 (issued March 22, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

6

Decisions on claims are based on the written record, which may include forms, reports, letters, and other evidence
of various types such as photographs, videotapes or drawings. Evidence may not be incorporated by reference, nor
may evidence from another individual’s case file be used. Evidence contained in another of the claimant’s case file(s)
may be used, but a copy of that evidence should be placed into the case file being adjudicated. All evidence that forms
the basis of a decision must be in that claimant’s case record. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Development of Claims, Chapter 2.800.5a (June 2011).

2

IT IS HEREBY ORDERED THAT the February 22 and March 15, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the cases are remanded to OWCP
for further proceedings consistent with this order of the Board.
Issued: June 12, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dublin, OH, Employer
__________________________________________

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

Docket No. 09-1473
Issued: April 20, 2010

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 May 26, 2009 appellant filed a timely appeal of decisions dated May 5, 2009 and
August 18, 2008 from the Office of Workers’ Compensation Programs denying his claim for a
recurrence of disability. Pursuant to 20 C.F.R. 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning on June 16,
2006 causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a September 21, 2007 decision, the
Board set aside the Office’s December 8, 2006 decision and remanded the case for further
development on whether appellant established a recurrence of disability beginning June 16, 2006
causally related to his accepted aggravation of severe facet arthrosis at L5-S1.1 The Board found
1

Docket No. 07-1245 (issued September 21, 2007).

that the medical evidence warranted further medical development regarding whether his
disability for his modified position was due to his accepted condition. The facts of this case as
set forth in the Board’s prior decision are hereby incorporated by reference.
In a February 26, 2007 attending physician’s report, Dr. James Dunnan, Board-certified
in family medicine, diagnosed degenerative disc at L4-5 and L5-S1 and severe facet arthrosis at
L5-S1. He checked a box “yes” indicating that appellant’s condition was caused or aggravated
by an employment activity. Dr. Dunnan noted that appellant was totally disabled between
June 16, 2006 and February 26, 2007. He advised that appellant could return to light duty with
restrictions on February 26, 2007. In a February 26, 2007 duty status report, Dr. Dunnan
reiterated that appellant could return to work that day with restrictions.
On November 28, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Karl Metz, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a
December 19, 2007 report, Dr. Metz summarized the history of injury and noted appellant’s
complaint of constant pain in his lower lumbar area worsened by prolonged standing and
walking. Upon examination, he found slight list of thoracolumbar spine to the left, maintained
lumbar lordosis and no scarring, discoloration swelling or increased warmth to the low back
region. Dr. Metz also found moderate increase of paraspinal muscle tone bilaterally. He
reviewed reports of magnetic resonance imaging (MRI) scans of appellant’s lumbar spine from
2003, August 16, 2004 and July 24, 2006. Dr. Metz stated that the MRI scan reports noted no
disc herniation but found chronic facet arthropathy primarily at L5-S1. He opined that these
findings were consistent with progressive evolutionary aging of appellant’s lumbar spine.
Dr. Metz advised that appellant did not have a worsening of the accepted facet arthrosis
condition on June 16, 2006 as an August 16, 2004 MRI scan noted no interval change in the
overall appearance of the spine when compared to a prior examination. He opined that appellant
could continue working in a modified capacity.
Dr. Metz advised that appellant was not totally disabled beginning June 16, 2006 and was
able to perform modified duties. He noted that appellant’s modified capacity could also be
tailored to accommodate any transient increase of low back symptoms if necessary. In
responding to an Office question regarding what duties appellant could perform if he was unable
to perform his modified job, Dr. Metz noted that, even if appellant could not perform modified
duties, he could have worked the modified position with restrictions including intermittent sitting
with back support and intermittent standing, walking short distances and squatting for one to two
months. Thereafter, he noted that appellant could return to his usual modified duties. Dr. Metz
opined that appellant did not have any residuals from his accepted condition as his low back
flare-ups were secondary to degenerative lumbar facet disease that appellant had been
experiencing since 1996. He also opined that appellant could perform his modified job as of
December 28, 2005. In a December 19, 2007 work capacity evaluation, Dr. Metz noted that
appellant was not able to perform his usual job but that he could work eight hours per day with
restrictions that permanently applied.
In a January 23, 2008 decision, the Office denied appellant’s claim for a recurrence of
disability beginning June 16, 2006 finding that the medical evidence did not establish that his
accepted condition had worsened as of that date. It found that the weight of medical opinion was
represented by Dr. Metz.

2

Appellant submitted a Form CA-7, claiming wage-loss benefits between February 26 and
September 17, 2007. In a February 19, 2008 decision, the Office denied the claim finding that
this period was a continuation of a prior claim denied in a January 23, 2008 decision.
In a February 21, 2008 report, Dr. Ashu Goyle, an osteopath and Board-certified
anesthesiologist, found tenderness around the left L4, L5 and S1 facet distribution. He
diagnosed chronic low back pain secondary to appellant’s work-related injury.
On February 19, 2008 appellant requested a review of the written record from the
January 23, 2008 decision. In a statement of the same date, he contended that his muscle strain
from 1996 and his facet arthrosis condition were not related conditions. Appellant further noted
that the muscle strain recurrences stopped in 2004 as he was on restricted duties. He submitted
additional treatment notes from Dr. Goyle.
In an April 22, 2008 decision, an Office hearing representative remanded the case for
further development finding that Dr. Metz did not adequately address whether appellant
sustained a recurrence of disability.
On May 2, 2008 the Office requested that Dr. Metz provide a supplemental opinion. It
noted the MRI scan evidence of record and requested that he review the July 24, 2006 MRI scan
report, based on a July 21, 2006 examination, and address whether it contained objective
evidence of a worsening of the accepted condition of aggravation of severe facet arthrosis and
whether the L5-S1 disc bulge was employment related. The Office also asked Dr. Metz to
clarify his prior opinion in which he noted that appellant could have performed his modified
assignment as of June 16, 2006 but which also indicated that the reported symptoms might have
required additional work restrictions for one or two months.
In a July 18, 2008 supplemental report, Dr. Metz reviewed the updated record and
statement of accepted facts. He reviewed the July 24, 2006 MRI scan report and opined that the
July 21, 2006 lumbar MRI scan did not support that degenerative facet changes caused the
accepted injury. The mild increase in facet arthropathy was secondary to the evolutionary aging
of appellant’s degenerative lumbar spine, which was not due to aggravated severe facet arthrosis.
He advised that the L5-S1 disc bulge reported on the July 21, 2006 was not related to appellant’s
work injury. Regarding what duty modifications would have been required if there was a
worsening of the accepted condition on June 16, 2006, Dr. Metz stated that, if appellant’s low
back flare-up had been an accepted condition, he would not have been able to perform his
modified work schedule and that he would not have been able to return to the modified work he
was performing on June 16, 2006 until two to three months following the low back flare-up.
Assuming this scenario, he determined that appellant could have resumed his modified-duty
position on or about September 16, 2006 and could continue working thereafter.
In an August 18, 2008 decision, the Office denied appellant’s recurrence of disability
claim beginning June 16, 2006 finding that the medical evidence did not establish disability for
work in the modified position as of June 16, 2006 or a worsening of the accepted condition.
On September 17, 2008 appellant requested a telephone hearing, which was held on
January 16, 2009. He submitted reports from Dr. Goyle dated April 3 and November 7, 2008

3

which noted that he continued to work 40 hours per week. Appellant advised that a February 6,
2008 lumbar MRI scan revealed that he had been stable since a July 21, 2006 MRI scan. He also
submitted several reports from Dr. James Weiss, a Board-certified anesthesiologist, who treated
him and performed lumbar facet nerve block procedures.
In an August 6, 2008 and January 19, 2009 attending physician’s report, Dr. Dunnan
diagnosed low back pain, degenerative joint disease and facet joint arthrosis. Regarding
appellant’s period of total disability and ability to resume work, he noted “n/a.” Regarding the
period of partial disability, Dr. Dunnan stated “current.” He also advised that appellant could
return to work with restrictions. In duty status reports dated between August 20 2008 and
April 3, 2009, Dr. Dunnan indicated that appellant could resume work with restrictions on
November 17, 2007. In a March 4, 2009 work capacity evaluation, he noted that appellant was
not able to perform his usual job, but he was able to work eight hours per day with restrictions.
Dr. Dunnan noted that he did not expect to increase the number of hours appellant could work
and that the restrictions would apply permanently.
In a May 5, 2009 decision, an Office hearing representative affirmed the August 18, 2008
decision.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he 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 show that he 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.3 To establish a change in the nature and extent of the
injury-related condition, there must be probative medical evidence of record. The evidence must
include a medical opinion, based on a complete and accurate factual and medical history, and
supported by sound medical reasoning, that the disabling condition is causally related to
employment factors.4

2

R.S., 58 ECAB 362 (2007); see 20 C.F.R. § 10.5(x).

3

K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11, 2009).

4

K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009).

4

ANALYSIS
The issue is whether appellant’s accepted condition worsened while performing his
modified position at the time of his claimed recurrence of disability. Appellant does not allege a
change in his light-duty position. The evidence is not sufficient to establish that disability
beginning June 16, 2006 is causally related to his accepted injury.
In a December 19, 2007 report, Dr. Metz, a second opinion physician, reviewed the
medical records and provided findings on examination. He stated that appellant’s low back
flare-ups and lumbar spine condition was due to aging and degenerative lumbar facet disease, not
the accepted aggravation of L5-S1 facet arthrosis. Dr. Metz noted that an MRI scan showed no
interval change in the overall appearance of appellant’s spine, which supported there was no
worsening of the accepted condition. He also determined that appellant’s accepted condition did
not prevent him from performing his modified position duties. In a July 18, 2008 supplemental
report, Dr. Metz reiterated that appellant’s low back condition was not a worsening of the
accepted lumbar condition. He supported his opinion by noting that a July 21, 2006 lumbar MRI
scan did not support that appellant’s degenerative facet changes were causally related to the
accepted injury as his facet arthropathy was due to aging of the degenerative lumbar spine.
Dr. Metz opined that appellant was able to perform his modified work duties. However, the
Office inquired about what restrictions would be required if appellant could not continue
working his modified position. Dr. Metz responded that appellant’s low back flare-up could
have rendered him totally disabled for his modified position through September 16, 2006.
However, the Board notes that the Office did not accept that appellant had a flare-up of his
accepted condition beginning June 16, 2006. The context of Dr. Metz’s reports clearly show that
he found no objective basis for disability for the modified job beginning June 16, 2006.
The Board finds that Dr. Metz’s opinion represents the weight of the medical evidence
and that the Office properly relied on his reports in denying appellant’s recurrence of disability
claim. Dr. Metz’s opinion is based on proper factual and medical history and his report
contained an accurate summary of the relevant medical evidence. Furthermore, he analyzed this
evidence in addition to his own findings on examination to reach a reasoned conclusion
regarding appellant’s condition.5 Dr. Metz found no basis on which to attribute the worsening of
appellant’s low back condition on June 16, 2006 to his accepted condition.
The record contains reports from Dr. Dunnan supporting total disability on and after
June 16, 2006. These reports however do not provide adequate medical reasoning to support that
appellant’s back condition was a spontaneous change of the accepted medical condition,
aggravation of preexisting severe facet arthrosis at L5-S1.6 In a February 26, 2007 attending
physician’s report, Dr. Dunnan checked a box “yes” indicating that appellant’s current condition
5

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the doctor’s opinion are factors which enter into the weight of an
evaluation).
6

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (a medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale).

5

was caused or aggravated by his work injury. However, he did not explain how appellant’s
accepted injury attributed to his current low back symptoms. Without medical rationale, this
opinion has little probative value and is insufficient to establish a causal relationship.7
Moreover, Dr. Dunnan broadly indicated that appellant sustained several recurrences of back
pain and flare-up but did not provide any evidence of bridging symptoms.8 Additionally, he
inconsistently reported the period of appellant’s total disability. In a February 26, 2007 report,
Dr. Dunnan indicated total disability between June 16, 2006 and February 26, 2007. Thereafter,
in reports dated August 6, 2008 and January 19, 2009, he noted no period of total disability.9
There is no other medical evidence contemporaneous with appellant’s alleged recurrence
of disability on June 16, 2006 that supports that appellant was totally disabled from his modified
position due to his accepted injury. While the record contains reports from Drs. Goyle and
Weiss, these reports do not support appellant’s claim as they do not specifically address the issue
of whether appellant’s accepted condition precluded him from performing his modified work
duties during the period at issue.
Consequently, appellant has not met his burden of proof to establish that he sustained a
recurrence of disability on June 16, 2006 causally related to his employment injury.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability beginning on
June 16, 2006 causally related to his accepted employment injury.10

7

See Lucrecia Nielsen, 42 ECAB 583 (1991); Lillian Jones, 34 ECAB 379 (1982) (an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s disability was related to the history given is of little probative value).
8

See Mary A. Ceglia, 55 ECAB 626 (2004) (to establish that the claimed recurrence of the condition was caused
by the accepted injury, medical evidence of bridging symptoms between appellant’s present condition and the
accepted injury must support the physician’s conclusion of a causal relationship).
9

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (the opinion of a physician must be
of reasonable medical certainty and must be supported by medical rationale explaining causal relationship).
10

The Board notes that appellant submitted new evidence after the Office issued its decision. However, the
Board may only review evidence that was in the record at the time the Office issued its final decision. See 20 C.F.R.
§ 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 5, 2009 and August 18, 2008 are affirmed.
Issued: April 20, 2010
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

7