United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.I., Appellant
and
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, LOS ANGELES DISTRICT
OFFICE, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-1730
Issued: January 15, 2008

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 June 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 15, 2007 in which an Office hearing
representative denied her claim for an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On August 21, 2006 appellant, then a 60-year-old supervisory investigator enforcement
manager in Los Angeles, California, filed a traumatic injury claim (Form CA-1), alleging that a
verbal attack by an employing establishment official on August 16, 2006 caused an aggravation
of her preexisting ulcerative colitis, temporomandibular joint symptoms, insomnia, heart

palpations, jaw clenching and nausea. Rosa Viramontes, her supervisor and the deputy director,
advised that Olophios Perry, the district director, and Anna Y. Park, the regional attorney, met
with appellant to discuss the status of some cases. Ms. Park, in what appeared to be frustration
on the pace of the investigation, raised her voice when asking questions on the efforts made in an
investigation. Appellant stopped work on August 17, 2006. In an August 23, 2005 letter,
Esmerelada Lake, a nurse practitioner for West Gastroenterology Medical Group, indicated that
appellant’s ulcerative colitis condition was unstable due to her current stress and that she was
disabled for 90 days.
In a letter dated September 29, 2006, the Office advised appellant that the information
submitted was insufficient to establish her claim. It requested additional factual and medical
information, including a comprehensive medical report from her treating physician containing a
diagnosis for her condition and a well-rationalized opinion on whether or not the claimed
employment incident contributed to her condition.
Appellant provided a statement alleging that Ms. Park verbally assaulted her on
August 16, 2006. She contended that it was in retaliation for appellant’s earlier detail as acting
director in the San Diego office from 2005 to April 2006. Appellant explained that she had
identified two major problems in San Diego’s legal department and believed that Ms. Park was
not pleased with her findings. She noted that, during an October 2005 office retreat at which
Ms. Park was present, she noted that the San Diego office was not able to meet its “Aged
Inventory” goal regarding old pending cases. When appellant’s detail in San Diego ended, she
returned to Los Angeles. She was assigned 80 cases to personally handle, which the regional
attorney had characterized as “human trafficking” cases. Appellant had three investigators to
work part time on the cases and was told by Ms. Viramontes, not to incur costs to hire
interpreters. She indicated that there was a lot of ambiguity of the regional attorney’s actions
and directions in terms of how to proceed on these cases. Appellant was advised by
Ms. Viramontes, to discontinue asking Ms. Park for direction and to proceed with the
investigation based on her judgment and experience. In July 2006, she stated that she was
assigned another investigative caseload of cases which had deadlines and was told to resume her
enforcement management duties. Appellant stated that she became overwhelmed with the
amount of work and went to an emergency room on July 3, 2006 with heart palpitations and
chest pain. By the end of July 2006, she received information related to the human trafficking
cases but was unable to immediately work on them because of her other work assignments.
Appellant sought clarification from Ms. Viramontes about her priorities, but did not receive
clarification. At the August 16, 2006 meeting with Ms. Viramontes and Ms. Park, she was asked
questions about the human trafficking assignment. Appellant told Ms. Park that she could not
analyze the subpoena response due to her other work assignments. She alleged that Ms. Park
started ranting about the problems in the investigation of the cases, including the lack of
interpreters and had directed her comments only to appellant who told Ms. Park during the
meeting that she was working as hard as she could, but that she also had other assignments and
was not going to be made a scapegoat. Appellant stated that Ms. Park’s verbal attack devastated
her. She was angered and hurt by a lack of support from her up line director. Appellant
contended that she became disabled due to the verbal altercation and in not being supported by
her supervisors. She sought help from the Employee Assistance Program the next day.
Appellant submitted a copy of an organizational chart, copies of electronic mailings indicating
her assignment of cases and questions related to them, a copy of a grievance, medical reports
2

documenting her inflammatory bowel disorder and a copy of her July 3, 2006 visit to the
emergency room.
In an October 27, 2006 report, Dr. Adebambo Ojuri, a gastroenterologist, advised that
appellant was diagnosed with ulcerative colitis in January 2004 which stabilized after surgery in
August 2004. He indicated that about three months prior, appellant experienced a flare-up of her
colitis, as evidenced by abdominal and back pain with severe diarrhea. A repeat colonoscopy in
July 2006 showed active ileitis. Dr. Ojuri noted that stress was a factor which could cause a
flare-up of ulcerative colitis. He indicated that appellant was currently experiencing stress.
Dr. Ojuri opined that as of August 23, 2006 appellant was totally disabled from work.
In an undated memorandum, Ms. Park provided an account of appellant’s assignment to
the human trafficking cases and the August 16, 2006 meeting. She stated that the human
trafficking case was an A-1 priority case and, from the start, appellant had great difficulty in
coordinating and moving the case along as she continued to ask the same questions over and over
again. Ms. Park listed several examples of appellant’s lack of understanding. She had expressed
her concern with Ms. Viramontes and the district director about appellant’s abilities to coordinate
efforts relating to the subpoena. Ms. Park had asked appellant several times about the interviews
and analysis to the subpoena response, but did not hear back or receive a clear answer from
appellant. During the August 16, 2006 meeting, she expressed frustration with the way the case
was handled and addressed her concerns that the investigators were not properly prepared.
Ms. Park stated that her frustration was not directed at appellant personally, but that she raised
the fact that this was the only A-1 case. She indicated that the director took responsibility for
enforcement’s overall failure to move the case along and further discussions occurred.
By decision dated November 8, 2006, the Office denied appellant’s claim on the grounds
that she had failed to establish any compensable factors of employment.
On December 5, 2006 appellant requested a review of the written record. She asserted
that she was demeaned and harassed as a result of office politics and that the directors choose not
to use enforcement resources to work on the human trafficking cases.
By decision dated March 15, 2007, an Office hearing representative affirmed the
November 8, 2006 denial of appellant’s claim.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.1

1

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

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Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.2 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.3 An
employee’s emotional reaction to an administrative or personnel matter is generally not covered
by workers compensation. The Board has held, however, that error or abuse by the employing
establishment in an administrative or personnel matter may afford coverage.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
2

Ronald J. Jablanski, 56 ECAB ___ (Docket No. 05-482, issued July 13, 2005); Lillian Cutler, 28 ECAB 125,
129 (1976).
3

Id.

4

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
5

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); C.S., 58 ECAB ___ (Docket No. 061583, issued November 6, 2006); A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006); D.L., supra
note 2.
6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, supra note 4.

7

See William H. Fortner, 49 ECAB 324 (1998).

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In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim but rather must be corroborated by the evidence.9 Mere
perceptions and feelings of harassment or discrimination will not support an award of
compensation. The claimant must substantiate such allegations with probative and reliable
evidence.10 The primary reason for requiring factual evidence from the claimant in support of
her allegations of stress in the workplace is to establish a basis in fact for the contentions made,
as opposed to mere perceptions of the claimant, which in turn may be fully examined and
evaluated by the Office and the Board.11
ANALYSIS
Appellant alleged stress and anxiety which resulted in an aggravation of her preexisting
ulcerative colitis condition as a result of a meeting on August 16, 2006. She meet that day with
Mr. Perry, Ms. Viramontes and Ms. Park to discuss the work pertaining to pending cases.
Appellant alleged that Ms. Park verbally assaulted her while asking questions pertaining
to the investigation of human trafficking cases. She further alleged that Ms. Park had directed
her comments at her. A verbal altercation, when sufficiently detailed by the claimant and
supported by the evidence, may constitute a compensable employment factor.12 Appellant,
however, has not presented sufficient evidence to establish that she was verbally abused by
Ms. Park or that her comments were directed only to her. Ms. Park acknowledged that she had
raised her concerns at the meeting about the progress of the investigation into the human
trafficking cases. She advised that her frustration was not directed at appellant. Ms. Viramontes,
the deputy director, stated that Ms. Park appeared to be frustrated with the pace of the
investigation and raised her voice when asking questions on the efforts made in the investigation.
Ms. Viramontes did not confirm that such comments were directed only towards appellant.
While the record does establish that Ms. Park may have spoken in a raised voice, the Board has
held that being spoken to in a harsh or raised voice does not, of itself, constitute verbal abuse.13
8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
10

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
11

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

12

Janet D. Yates, 49 ECAB 240 (1997).

13

Beverly R. Jones, 55 ECAB 411 (2004).

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The evidence of record does not establish a compensable employment factor of verbal abuse.
While appellant alleged that her supervisors did not actively support her after Ms. Park’s
statements, she did not submit any evidence substantiating error or abuse by either director.
Ms. Park advised that the director took responsibility for enforcement’s overall failure to move
the case along. Appellant has not established a compensable employment factor in this regard.
Appellant alleged that Ms. Park’s comments about the case investigation were in
retaliation of her earlier detail as acting director in the San Diego office. She contented that
Ms. Park was vindictive because she had identified two major problem areas and made remarks
about the workflow in the legal unit where Ms. Park was a supervisor. However, appellant has
not presented evidence to establish a factual basis for her allegation of harassment with reliable
and probative evidence. She has not established a compensable employment factor.14 While
Ms. Park did make remarks about the progress of work to which appellant was assigned, the
Board has characterized criticisms of performance, supervisory discussions of job performance,
matters involving training and reprimands as administrative or personnel matters of the
employing establishment, which are covered only when in error or abusive.15 Appellant has not
submitted evidence to establish error on the part of Ms. Park in raising questions concerning an
ongoing investigation and the status of cases. Appellant has not established a compensable
employment factor.
To the extent that appellant alleged she was overworked, the Board notes that the
assignment of work duties is an administrative function of the employing establishment and is
not compensable absent error or abuse.16 The Board has held that overwork, when substantiated
by sufficient factual information to support the claimant’s account of events, may be a
compensable factor of employment.17 Appellant has not submitted evidence to substantiate that
the employing establishment, in its administrative capacity, acted unreasonably in assigning her
work.18 Similarly, the mere fact that appellant filed an Equal Employment Opportunity
complaint does not constitute evidence of harassment or unfair treatment by the employing
establishment.19
As appellant failed to establish any compensable factors of employment occurring on
August 16, 2006 the Office properly denied her claim.20
14

Lori A. Facey, 55 ECAB 217 (2004).

15

Roger W. Robinson, 54 ECAB 846 (2003); James E. Norris, 52 ECAB 93 (2000).

16

See Barbara J. Latham, 53 ECAB 316 (2002).

17

Bobbie D. Daly, 53 ECAB 691 (2002).

18

See Donney T. Drennon-Gala, 56 ECAB ___ (Docket No. 04-2190, issued April 26, 2005) (the assignment of
work is an administrative function of the employer and the manner in which a supervisor exercises his or her
discretion falls outside the ambit of the Act).
19

See David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828, issued January 19, 2005).

20

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Hasty P. Foreman, 54 ECAB 427 (2003).

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CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition on August 16, 2006 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 17-0572
Issued: August 6, 2018

Case Submitted on the Record

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

JURISDICTION
On January 17, 2017 appellant filed a timely appeal from a November 23, 2016 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted January 31, 2014 employment incident.

1
2

5 U.S.C. § 8101 et seq.

After OWCP issued its November 23, 2016 decision appellant provided additional evidence. The Board’s
jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is
precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 3, 2016 appellant, a 42-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a posterior root medial meniscal tear on January 31,
2014 when she was attacked by dogs while working her mail route. She stated that she fell down
and was bitten four times while twisting and turning to avoid more dog bites. Appellant alleged
that she had been experiencing left leg and knee pain ever since her fall. She did not stop work.
In a narrative statement, appellant further indicated that she was attacked by two German
Shepherds and, during the attack, she was thrown/fell into a ditch near the road where the bites
occurred. She reiterated that she sustained four dog bites to her left leg, around her knee and calf
area. Appellant further indicated that she was nine weeks pregnant at the time of the attack and
her treatment was altered because of her pregnancy. Shortly, after the claimed incident, she
suffered a miscarriage. Appellant advised that her left knee condition would heal over time, but
her pain lingered. She sought treatment from a family physician and discovered two months later
that she was pregnant again. This again slowed down her diagnosis and medical treatment, but the
pain remained. Appellant stated that she sought treatment from her family physician and was
referred to three different specialists when she was eventually diagnosed with a torn meniscus of
the left knee. She believed that her torn meniscus was caused by the dog bite incident on
January 31, 2014 and denied any prior injuries or preexisting conditions. Appellant stated that she
continued to suffer from pain and swelling on a daily basis and requested authorization of surgical
intervention.
A magnetic resonance imaging (MRI) scan of the left knee dated June 14, 2016 revealed
posterior root medial meniscal tear with mild-to-moderate extrusion of the body, mild medial
collateral ligament (MCL) sprain, and minimal effusion with minimal synovitis.
In a May 19, 2016 report Dr. Alice Mendelson, a Board-certified orthopedic surgeon, noted
that appellant presented with pain and swelling in the left lower extremity starting just above the
knee two years after she had multiple dog bites at the right superolateral aspect of the knee, the
back of the knee, and in the lower leg. She noted that she was not sure of the reason for appellant’s
pain and swelling. Dr. Mendelson did not sense that appellant had a neuroma, although the
possibility had not been ruled out. She used an ultrasound to evaluate the knee and found no
pocket fluids in the thigh or around the swelling where a scar was located. The patella medial and
lateral menisci were evaluated, as well as the patellar tendon. No instar-articular fluid was noted.
X-rays of the left tibia and fibula showed bony alignment and x-rays of the left knee demonstrated
mild medial joint narrowing, bilaterally. Dr. Mendelson found that the remaining scars from the
dog bites were in the distal leg area on the lateral aspect and were barely noticeable since the skin
had healed well. She noted that appellant’s wounds had healed and she did not have infections
after the dog bites, but a week later appellant suffered a miscarriage and her left leg had been achy
ever since. Dr. Mendelson reported that appellant saw a surgeon who told her he did not know
why she was experiencing pain and swelling and informed her that he could not help her.
On June 6, 2016 Dr. Mendelson found puffiness around the knee, mostly in the
superolateral aspect. She noted that appellant’s range of motion was full and the knee was stable.

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In a June 30, 2016 report, Dr. Mendelson reviewed a June 14, 2016 MRI scan of the left
knee, found a marker on appellant’s skin, and examined the area where the dog bite was located
to see if there was any foreign body in the soft tissue or swelling in that area. She found no foreign
body in the soft tissue and no focal swelling of the soft tissues on that area. Dr. Mendelson
concluded that appellant sustained a medial meniscal tear after a dog attack two years prior. She
opined that this incident could explain some of the swelling in appellant’s knee and leg, but
concluded that it could not explain “the whole picture.”
On September 8, 2016 Dr. Mendelson reported, “I am not sure that the medial meniscal
tear is the reason for [appellant’s] pain, but it may very well be.” She further indicated that since
appellant has had longstanding pain and swelling, she recommended arthroscopic evaluation of
the knee and treatment of the meniscal tear.
In an October 19, 2016 letter, OWCP advised appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a November 10, 2016 narrative statement indicating that,
on January 31, 2014 she was bitten four times by two dogs while in the performance of duty. In a
second narrative statement dated November 10, 2016, she reiterated the factual history of her claim
and alleged that the January 31, 2014 incident caused her medial meniscus tear.
In a patient disability statement dated November 17, 2016, Dr. Mendelson diagnosed
medial meniscus tear and indicated that appellant had a physician’s appointment scheduled for
November 21, 2016.
On November 21, 2016 Dr. Mendelson indicated that x-rays were taken of appellant’s left
knee and they showed good alignment, as well as maintained joint spaces. No sclerosis or
osteophyte formation was noted. Upon physical examination, Dr. Mendelson found that
appellant’s left knee was swollen. Appellant was tender on the medial joint line, but the knee was
stable to anterior-posterior and mediolateral stresses. She complained that her knee had been more
swollen than before and she felt popping and clicking occasionally. There was no deformity and
range of motion exhibited full extension to 120 degrees of flexion. Dr. Mendelson injected the left
knee with a steroid and indicated her intent to proceed with surgery.
By decision dated November 23, 2016, OWCP found that appellant was claiming a
traumatic injury and accepted that the January 31, 2014 employment incident occurred as alleged.
It denied the claim, however, the medical evidence of record failed to establish causal relationship
between her diagnosed condition and the accepted January 31, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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

3

Supra note 1.

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time limitation period of FECA, that an injury4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal
injury. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition is causally related to the employment incident.6
Causal relationship is a medical issue 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 employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted January 31, 2014 employment incident.
In her reports, Dr. Mendelson noted that appellant presented with pain and swelling in the
left lower extremity starting just above the knee two years after appellant had multiple dog bites
at the right superolateral aspect of the knee, the back of the knee, and in the lower leg. She reported
that she was not sure of the reason for appellant’s pain and swelling. Dr. Mendelson opined that
appellant’s dog attack two years prior could explain some of the swelling in her left knee and leg,
but concluded that it would not explain “the whole picture.”
In a report of September 8, 2016 Dr. Mendelson concluded, “I am not sure that the medial
meniscal tear is the reason for [appellant’s] pain but it may very well be.” The Board finds that
appellant failed to provide medical rationale explaining how being bitten by dogs, falling down,
and twisting and turning to avoid more dog bites at work on January 31, 2014 caused or aggravated
her left knee condition. Appellant noted that her condition occurred while she was at work, but
4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008).

6

Id.

7

Id.

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such generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how her
physical activity at work actually caused or aggravated the diagnosed condition.8 The Board
further finds that Dr. Mendelson’s opinion regarding the cause appellant’s current pain and
swelling is speculative and equivocal in nature.9 Dr. Mendelson did not otherwise sufficiently
explain the reasons why diagnostic testing and examination findings led her to conclude that the
January 31, 2014 incident at work caused or contributed to the diagnosed condition. Thus, the
Board finds that her reports fail to establish that appellant sustained a left knee condition causally
related to the January 31, 2014 employment incident.
Other medical evidence of record, including diagnostic test reports, is of limited probative
value as it does not specifically address whether appellant’s diagnosed conditions are causally
related to the January 31, 2014 work incident.10
The Board finds that, as appellant has not submitted rationalized medical evidence
sufficient to establish a left knee condition causally related to the accepted January 31, 2014
employment incident, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted January 31, 2014 employment incident.

8

See K.W., Docket No. 10-0098 (issued September 10, 2010).

9
Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
10

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship).

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ORDER
IT IS HEREBY ORDERED THAT the November 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2018
Washington, DC

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

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

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

6


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

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

Docket No. 12-835
Issued: September 10, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant filed a timely appeal from a September 20, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by OWCP.
The last merit decision of record was OWCP’s September 20, 2010 decision. Because more than
180 days elapsed between the last merit decision to the filing of this appeal, the Board lacks
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On April 27, 2004 appellant, then a 55-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 6, 2003 he sustained a strained lower back when he
was pushing a wire cage full of mail. OWCP accepted the claim for lumbar herniated disc at
L5-S1. Appellant returned to work with light-duty restrictions as of March 22, 2006.
On February 5, 2010 appellant filed a claim for compensation (Form CA-7) for leave
without pay for the period July 5, 2007 to February 4, 2010, requesting a total of 68 hours of
wage-loss compensation as a result of his disability.3
Appellant submitted duty status reports (Form CA-17) dated June 13, 2007 to July 23,
2009 from Dr. Amanda C. Zaide, a treating physician, who advised that appellant could return to
work under limited duty with restrictions of no lifting over 25 pounds and intermittent standing,
walking, sitting, kneeling and twisting.
In school/work notes dated July 5, 2007 to February 3, 2010, Dr. Zaide stated that
appellant was unable to work on July 5 and 6, 2007, March 20, 21, 30 and 31, 2008 and
February 3, and 4, 2010 due to his medical condition of severe low back pain.
In medical reports dated September 24 and December 3, 2009, Dr. Joseph J. Czerkawski,
Board-certified in sports medicine, reported that appellant had a long history of chronic low back
pain. He noted a disc herniation at L5-S1 in 2004 as well as underlying degenerative disease.
Upon physical examination, Dr. Czerkawski diagnosed L5-S1 chronic disc herniation with
temporary exacerbation and lumbar spondylosis with disc herniation. He recommended that
appellant continue on light duty with permanent restrictions and be treated with physical therapy.
Physical therapy notes from Heartland Rehabilitation Services dated October 15 to
November 19, 2009 were submitted documenting appellant’s treatment for his lumbar disc
displacement.
By letter dated February 12, 2010, OWCP requested that appellant submit additional
medical evidence to establish his claim for disability for the period July 5, 2007 to
February 4, 2010.
In a February 24, 2010 medical report, Dr. Czerkawski opined that appellant’s disc
protrusion at L4-5 probably had central and bilateral foraminal stenosis which was worsening.
He recommended a magnetic resonance imaging (MRI) scan and released appellant to work on a
modified basis.
In a March 10, 2010 diagnostic report, Dr. David Ludwig, a Board-certified diagnostic
radiologist, reported that appellant’s lumbar MRI scan showed disc space narrowing, disc
3

In a February 6, 2010 time analysis (Form CA-7a), appellant requested wage-loss compensation for July 5 to 6,
2007, February 15 and March 20, 21, 2008, December 30 and 31, 2008, February 3 and 4, 2010. He requested four
hours of leave without pay for a doctor’s visit on February 15, 2008 and eight hours of leave without pay for each of
the remaining dates. The Board notes that, by letter dated September 13, 2011, appellant requested that OWCP
remove his request for leave without pay for his four-hour doctor’s visit on February 15, 2008.

2

desiccation and broad-based disc protrusion at L4-5 creating mild-to-moderate bilateral neural
foraminal stenosis.
By decision dated April 1, 2010, OWCP denied appellant’s claim for disability for the
period July 5, 2007 to February 4, 2010.
On April 13, 2010 appellant requested review of the written record before the Branch of
Hearings and Review. He stated that Dr. Zaide’s off-work notes were sufficient to establish his
compensation for disability.
In support of his request, appellant submitted treatment notes from Oak Hill Family Care
Center dated July 5, 2007, March 20 to December 30, 2008 and February 3, 2010. His physician
noted that he suffered from chronic low back pain and radiculopathy and needed an off-work
note.
In a May 12, 2010 medical report, Dr. Liberto Colombo, a doctor of osteopathic
medicine, reported that appellant continued to suffer from back pain and diagnosed lumbosacral
herniated disc. He recommended that appellant resume work with restrictions.
By decision dated September 20, 2010, the Branch of Hearings and Review affirmed the
April 1, 2010 OWCP decision denying appellant’s claim for disability for the period July 5, 2007
to February 4, 2010.
By letter dated September 13, 2011, appellant requested reconsideration of OWCP’s
decision and stated that he was enclosing patient notes from his physician which would support
his claim for disability.
Appellant resubmitted physical therapy progress notes and treatment notes dated July 5,
2007, March 20 to December 30, 2008 and February 3, 2010 from Oak Hill Family Care Center
already of record. He also submitted a number of physical therapy progress notes from the Back
Institute dated May 12, 2004 to August 16, 2011 documenting his treatment.
In a December 8, 2010 medical report, Dr. Gerard M. Gerling, a Board-certified
neurologist, reported that appellant complained of pain in his back starting seven years ago and
was on light-duty status. He noted that MRI scans showed degenerative spondylosis of the
lumbar spine compatible with his age but no evidence of an injury. Upon physical examination,
Dr. Gerling reported that appellant had no neurologic deficits.
In a March 29, 2011 medical report, Dr. Ronak Patel, a doctor of osteopathic medicine,
reported that appellant complained of continuous lower back pain which began on
October 6, 2003. He noted that appellant was working at the employing establishment in 2003
when he injured his back after pushing a large and heavy container. Dr. Patel diagnosed lumbar
degenerative disc disease, lumbar disc dessication and lumbar foraminal stenosis, recommending
epidural steroid injections.
In a May 6, 2011 medical report, Dr. L.D. Atkinson, Board-certified in occupational
medicine, reported that appellant injured his back on October 6, 2003 when he was pushing a
case full of mail that was approximately 600 pounds. Appellant complained of continued and
3

constant lower back pain. Upon review of appellant’s diagnostic tests, Dr. Atkinson diagnosed
degenerative disc disease of the lumbar spine and degenerative osteoarthritis of the lumbar spine.
He further noted that appellant had a history of herniated L5-S1 disc, presumably from the
October 6, 2003 work-related injury, which had been resorbed. Dr. Atkinson opined that
appellant’s symptoms were not a result of his herniated disc problem because the injury occurred
seven years ago before his symptoms ever started. He concluded that appellant’s degenerative
osteoarthritis and degenerative disc disease were the cause of his continued low back pain and
radicular symptoms, advising that his work-related injury should be closed out.
In medical reports dated May 12 and August 15, 2011, Dr. Alberto Castiel, Boardcertified in family medicine, reported that appellant had a 10-year history of low back pain and
noted an October 6, 2003 work-related injury when he was pushing a 600-pound wire cage. He
diagnosed degenerative disc disease, spondylosis, lumbargo with radiculopathies and
degenerative joint disease. Dr. Castiel opined that appellant was most likely suffering from
degenerative changes associated with the work-related injury.
By decision dated September 20, 2011, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence. It noted that the only evidence submitted were duplicate copies of treatment
notes from Oak Hill Family Care Center dated July 5, 2007, March 20 to December 30, 2008 and
February 3, 2010 and appellant’s September 13, 2011 narrative statement.
LEGAL PRECEDENT
To reopen a case for merit review under section 8128(a), the evidence or argument
submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific
point of law; (2) advance a relevant legal argument not previously considered by OWCP; or
(3) constitute relevant and pertinent new evidence not previously considered by OWCP.4
Section 10.608(b) of OWCP regulations provide that, when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2),
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.5
ANALYSIS
The Board finds that this case is not in posture for decision.
In its September 20, 2011 denial of appellant’s reconsideration request, OWCP noted that
the only evidence submitted were duplicate copies of treatment notes from Oak Hill Family Care
Center dated July 5, 2007, March 20 to December 30, 2008 and February 3, 2010 and his
September 13, 2011 narrative statement. However, the record reflects that OWCP received new
medical evidence from appellant prior to the issuance of its September 20, 2011 decision
denying his request for reconsideration.
4

D.K., 59 ECAB 141 (2007).

5

K.H., 59 ECAB 495 (2008).

4

OWCP properly noted that appellant submitted treatment notes from Oak Hill Family
Care Center dated July 5, 2007, March 20 to December 30, 2008 and February 3, 2010 already of
record. However, in support of his reconsideration request, appellant also submitted new
evidence in the form of a December 8, 2010 report from Dr. Gerling, a March 29, 2011 report
from Dr. Patel, a May 6, 2011 report from Dr. Atkinson, medical reports dated May 12 and
August 15, 2011 from Dr. Castiel, as well as physical therapy progress notes dated May 12, 2004
to August 16, 2011. OWCP did not note receipt or consideration of the above-listed medical
reports.
The underlying issue presented is whether appellant was disabled during the period
July 5, 2007 to February 4, 2010. The additional medical reports he submitted with his
September 13, 2011 reconsideration request did address his continuing status, commencing on
the date of injury.
The Board finds that OWCP, in its September 20, 2011 decision, did not review the
above-listed medical reports which were received prior to the issuance of the September 20,
2011 decision. As the Board’s decisions are final as to the subject matter appealed, it is crucial
that all evidence relevant to the subject matter of the claim which was properly submitted to
OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP.6
Because OWCP did not consider the new medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal.7
For these reasons, the case will be remanded to OWCP to enable it to properly consider
all of the evidence submitted at the time of the September 20, 2011 decision. Following such
further development as OWCP deems necessary, it shall issue an appropriate decision on the
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

6

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB
439 (1994).
7

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2011 decision be set aside and
the case remanded to the Office Workers’ Compensation Programs for further proceedings
consistent with this opinion.
Issued: September 10, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, HEADQUARTERS
FACILITY SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-0009
Issued: May 24, 2019

Case Submitted on the Record

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

JURISDICTION
On October 1, 2018 appellant filed a timely appeal from an August 3, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 3, 2018 decision, OWCP received additional evidence and appellant
submitted evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on April 4, 2018, as alleged.
FACTUAL HISTORY
On April 7, 2018 appellant, then a 63-year-old maintenance supervisor, filed a traumatic
injury claim (Form CA-1) alleging that, at 11:59 p.m. on April 4, 2018, he sustained head/skull
injuries when a radio cabinet fell off a wall and struck his head. He stopped work on April 5, 2018.
The employing establishment issued an authorization for examination and/or treatment
(Form CA-16) on April 5, 2018, which indicated that appellant was authorized to seek medical
treatment for injury to the skull/top of head.
In a statement dated May 23, 2018, D.D., a supervisor maintenance H2, related that at
approximately 12:22 a.m. on April 5, 2018, he heard a loud crash while he was taking radios from
employees. He felt something hit his lower calf, and he turned to see appellant holding his hands
over his head and running towards the door. He asked appellant if he was okay and observed that
a radio cabinet had fallen off the wall. D.D. checked on appellant to ensure he was not bleeding,
asked him if he was alright, and instructed him to go sit down and inform his manager what had
just occurred.
On May 29, 2018 appellant was seen by Dr. Carolyn A. Hammett, a Board-certified
internist, who indicated that appellant was receiving medical treatment. Dr. Hammett noted that
appellant was unable to work for the period May 1 through June 29, 2018.
In a development letter dated July 2, 2018, OWCP advised appellant that when his claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work. It noted that the employing establishment did not controvert continuation of pay or
challenge the merits of the case and payment of a limited amount of medical expenses was
administratively approved. However, the merits of the claim had not been formally considered
and appellant’s claim was being reopened because he had not returned to full-time work. OWCP
explained the additional factual and medical evidence needed and requested that he respond to a
factual development questionnaire. Appellant was afforded 30 days to submit the necessary
evidence.
In response to OWCP’s request appellant submitted an April 5, 2018 visit summary report
from Dr. Enoh E. Akpandak, Board-certified in family medicine, a May 1, 2018 progress note
from Dr. Hammett, physical therapy notes for the period May 2 through July 25, 2018 from
Thuy N. Plater, a physical therapist, a May 1, 2018 x-ray interpretation of the cervical spine, and
an April 5, 2018 computerized tomography (CT) scan of the brain.
In an April 5, 2018 report, Dr. Akpandak noted that appellant was seen for complaints of
neck pain. Appellant related that while he placing a radio into a cabinet at work the cabinet fell
on his head. Physical examination findings were provided. Dr. Akpandak diagnosed closed head
injury, headache, neck pain, work-related injury.

2

Dr. Hammett, in May 1, 2018 progress report, noted that appellant presented with a head
injury and that he was released to return to work that day. Appellant complained of neck pain
when turning his head to the right. Dr. Hammett assessed neck pain.
In progress notes dated July 9, 2018, Dr. Hammett diagnosed neck pain and provided
physical examination findings. In a verification of treatment form dated July 9, 2018, she indicated
that appellant was disabled from work from July 9 to 31, 2018.
By decision dated August 3, 2018, OWCP denied appellant’s traumatic injury, claim
finding that he had not submitted factual evidence sufficient to establish that the April 4, 2018
employment incident occurred, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6
Generally, fact of injury consists of two components that must be considered in conjunction with
each another. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident at the time, place, and in the manner alleged.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
An employee’s statement 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.9
Moreover, an injury does not have to be confirmed by eyewitnesses in order to establish the fact
3

Supra note 1.

4

J.R., Docket No. 18-1079 (issued January 15, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A.
Contreras, 57 ECAB 364 (2006).
5

See C.R., Docket No. 18-1332 (issued February 13, 2019); S.P., 59 ECAB 184 (2007).

6
See S.W., Docket No. 18-1653 (issued March 12, 2019); C.C., Docket No. 17-1722 (issued July 5, 2018); B.F.,
Docket No. 09-0060 (issued March 17, 2009).
7

M.M., Docket No. 18-0769 (issued September 10, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
8

W.C., Docket No. 18-1651 (issued March 7, 2019); M.M., id.; John J. Carlone, 41 ECAB 354 (1989).

9

A.C., Docket No. 18-1567 (issued April 9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).

3

that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.10 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim.11
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the
April 4, 2018 employment incident occurred as alleged.
On his claim form, appellant indicated that, on April 4 2018, he sustained head/skull
injuries when a radio cabinet fell off a wall and struck his head. D.D., a witness to the incident
indicated that he was collecting radios from employees during the night shift of April 4 to 5, 2018
when he heard a loud crash and felt something hit his calf. He saw that a radio cabinet had fallen
off a wall and witnessed appellant holding his hands over his head. D.D. asked appellant if he was
okay and instructed him to first sit down and then tell his manager what had occurred. On the
reverse side of the claim form, the employing establishment indicated that the injury occurred in
the performance of duty.
The Board finds that appellant’s description of the incident on the Form CA-1 and the
witness statement from D.D. are sufficient to establish that the April 4, 2018 employment incident
occurred at the time and place, and in the manner alleged. Appellant provided a singular account
of the mechanism of injury that has not been refuted by any evidence in the record.12 The medical
evidence of record also substantiated his description of the April 4, 2018 incident. In an April 5,
2018 report, Dr. Akpandak reported a history of injury of that appellant was placing a radio into a
cabinet at work when the cabinet fell on his head. In addition, appellant’s action surrounding the
incident corroborate his description. He stopped work and sought medical treatment the morning
of April 5, 2018. As noted above, a claimant’s statement that an injury occurred at a given time,
place, and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.13 The Board finds, therefore, that appellant has established that the April 4,
2018 employment incident occurred in the performance of duty, as alleged.
As appellant has established that the April 4, 2018 employment incident factually occurred,
the question becomes whether this incident caused an injury.14 The Board will, therefore, set aside
10

A.C., id.; Joseph H. Surgener, 42 ECAB 541, 547 (1991).

11

A.C., supra note 9; Betty J. Smith, 54 ECAB 174 (2002).

12

See S.W., Docket No. 17-0261 (issued May 24, 2017) (the Board found that OWCP improperly determined that
the alleged employment incident did not occur when appellant provided consistent accounts of the claimed incident
and there was no evidence to refute her detailed description); see also J.L., Docket No. 17-1712 (issued
February 12, 2018).
13

Supra note 9.

14

See Willie J. Clements, 43 ECAB 244 (1991).

4

OWCP’s August 3, 2018 decision and remand the case for consideration of the medical evidence.
Following this and other such further development as deemed necessary, OWCP shall issue a
de novo decision addressing whether appellant has met her burden of proof to establish a diagnosed
medical condition causally related to the accepted employment incident and any attendant
disability.15
CONCLUSION
The Board finds that appellant has met his burden of proof to establish that the April 4,
2018 employment incident occurred in the performance of duty, as alleged. The Board further
finds, however, that this case is not in posture for a decision with regard to whether appellant has
established causal relationship between his diagnosed conditions and the accepted April 4, 2018
employment incident.

15

The Board notes that the employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment
properly executes a Form CA-16 authorizing medical treatment related to a claim for a work injury, the form creates
a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination/treatment
regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by
OWCP. See 20 C.F.R. § 10.300(c).

5

ORDER
IT IS HEREBY ORDERED THAT the August 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 24, 2019
Washington, DC

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

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

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

6


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

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Appearances:
Patrick Sorsby, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0534
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On January 10, 2020 appellant, through counsel, filed a timely appeal from a December 17,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome (CTS) causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 26, 2018 appellant, then a 69-year-old clerk, filed an occupational disease claim
(Form CA-2) for CTS due to factors of her federal employment. She explained that she
experienced pain in her right hand beginning in May 2018 and began using a brace she was
previously prescribed with the hopes that this would slow or stop the progression of her CTS.
Appellant indicated that she first became aware of her condition and attributed it to her federal
employment on May 5, 2018. She did not stop work.
In an undated narrative statement, appellant indicated that she is right-handed and her work
duties required unlocking and opening a security door to the passport office, setting up a camera
for passport pictures, taking photographs of new applicants, cutting and trimming the pictures,
answering the telephone, and writing down messages, all with her right hand.
In reports dated May 29, June 4 and 25, 2018, Dr. Michael Krastins, a Board-certified
internist, indicated that appellant had been seen for pain in her right hand “similar to her previous
carpal tunnel.” He recounted that the pain was exacerbated by repetitive hand work and worsened
if she worked more than eight hours. Dr. Krastins noted that appellant was diagnosed with CTS
in 2006 and an electromyography (EMG) at that time had confirmed bilateral CTS. He also
indicated that she also had a laceration with proximal interphalangeal (PIP) joint dislocation in her
right hand in 2013 and used splints and a brace since then, which may have worsened her
symptoms.
In an attending physician’s report (Form CA-20) dated June 25, 2018, Dr. Krastins noted
that appellant worked at a post office and her job involved repetitive hand movements, which
included typing and writing. He diagnosed CTS and checked a box marked “Yes” indicating his
belief that the condition was aggravated by her federal employment.
In a development letter dated July 13, 2018, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and afforded her 30 days to submit the necessary evidence.
Appellant subsequently submitted an April 24, 1998 report from Dr. Henry Kim, a Boardcertified orthopedic surgeon, who diagnosed bilateral thumb trigger fingers with associated
carpometacarpal (CMC) joint arthritis and ruled out rheumatologic condition. Dr. Kim indicated
that appellant had presented for an initial evaluation for complaints of bilateral hand and wrist pain
with associated tingling and swelling. Appellant reported that her symptoms began in
November 1997 and her medical history included sustained bilateral palm puncture wounds “while
she was in the service.” Dr. Kim noted that appellant “may also have [CTS] bilaterally with an
odd presentation.”

2

In a June 2, 2006 report, Dr. Jianhui Zhang, a Board-certified neurologist, diagnosed mild
CTS likely due to diabetes.
On August 7, 2006 Dr. Anitha Abraham, a Board-certified neurologist, diagnosed CTS and
advised appellant to continue to use wrist splints, especially at night.
In a report dated June 6, 2018, Dr. Krastins noted that appellant had reported pain in her
right hand and that repetitive motion increased the pain in her hand and kept her from working.
He indicated that he had previously diagnosed her with CTS and she wore a brace on her right
hand. Dr. Krastins advised appellant to avoid continued repetitive motion of her right hand and
noted that she had not yet had a release of her right CTS.
An electrodiagnostic testing report dated June 25, 2018 revealed mild-to-moderate bilateral
median neuropathy at the wrist affecting both wrists, sensory more than motor fibers.
In a June 25, 2018 report, Dr. Krastins indicated that appellant was seen for CTS and
continued to complain of numbness and tingling mostly involving her thumb, first, and second
digit of her right hand. He reiterated that she was first diagnosed with CTS in 2006.
In a duty status report (Form CA-17) dated June 25, 2018, Dr. Krastins again diagnosed
CTS and indicated that appellant also suffered from osteoarthritis. He advised that she was not
capable of returning to her regular-duty position and provided work restrictions.
On July 23, 2018 Dr. Frank Lore, a Board-certified physiatrist, indicated that appellant had
a history of CTS and she had reported changing jobs and using a splint on her right wrist with
improvement in symptoms until last August when her job change occurred and she had had a
recurrence of her symptoms. He diagnosed persistent mild-to-moderate median neuropathy
consistent with CTS.
In an August 1, 2018 report, Dr. Krastins reiterated his diagnosis of right-sided CTS and
opined that appellant’s activities as a postal worker “likely” exacerbated her CTS. He noted that
repetitive arm movements and activity were known to worsen CTS symptoms. Dr. Krastins
indicated that, if more details were needed regarding the cause of appellant’s condition, he would
suggest that she discuss this with a plastic surgeon for his or her opinion.
In a report dated August 9, 2018, Dr. James L. Dolph, a Board-certified plastic surgeon,
diagnosed bilateral CTS, recently considerably worsened on the right side, and opined that this
condition was directly related to appellant’s job functions/repetitive motions. He recommended a
right carpal tunnel release.
By decision dated October 10, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record is insufficient to establish a causal relationship between
appellant’s diagnosed conditions and the accepted factors of her federal employment.
On March 1, 2019 appellant, through counsel, requested reconsideration.
Appellant further submitted an October 18, 2018 report from Dr. Dolph who indicated that
she underwent right carpal tunnel release on September 10, 2018 and was returned to work on

3

October 22, 2018. Dr. Dolph advised that she could work light duty for one month and had
restrictions of not lifting more than five pounds and not write more than five minutes at a time.
He opined that diabetes, arthritis, and contralateral (remote) left palmar puncture wounds were
very unlikely to have caused her right CTS. Dr. Dolph concluded that the cumulative effects of
many years of the repetitive motions she used at work were, in his best medical opinion, far more
likely to have caused her right CTS.
By decision dated December 17, 2019, OWCP denied modification of its prior October 10,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the identified employment factors.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

S.K., Docket No. 18-1414 (issued April 29, 2020); I.J., 59 ECAB 408 (2008).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral CTS
causally related to the accepted factors of her federal employment.
In his August 9, 2018 report, Dr. Dolph diagnosed bilateral CTS, recently considerably
worsened on the right side, and opined that this condition was directly related to appellant’s job
functions/repetitive motions. On October 18, 2018 he noted that he performed a right carpal tunnel
release on September 10, 2018 and released her back to work on October 22, 2018. Dr. Dolph
opined that the cumulative effects of many years of the repetitive motions she used at work were,
in his best medical opinion, far more likely to have caused her right CTS. He did not, however,
explain the pathophysiological process by which repetitive hand motions resulted in bilateral
CTS.8 A mere conclusion without necessary rationale explaining why the physician believes that
a claimant’s accepted employment resulted in the diagnosed condition is not sufficient.9 As
Dr. Dolph’s reports do not provide a well-rationalized opinion on causal relationship, it is
insufficient to meet appellant’s burden of proof.
Dr. Krastins, in his reports dated May 29, June 4, 6, and 25, 2018, noted that appellant was
initially diagnosed with CTS in 2006. He further indicated that she was diagnosed with
osteoarthritis and a laceration with PIP joint dislocation in her right hand in 2013, which he opined
may have worsened her symptoms. However, Dr. Krastins did not provide an opinion on causal
relationship between appellant’s diagnosed CTS and the accepted factors of her federal
employment. The Board has long held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.10 Therefore these reports are insufficient to establish the claim.
In his June 25, 2018 Form CA-20, Dr. Krastins checked a box marked “Yes” indicating his
belief that appellant’s condition was aggravated by her federal employment. However, the Board
has held that an opinion on causal relationship with an affirmative check mark, without more by
way of medical rationale, is insufficient to establish the claim.11 As such, this report is insufficient
to establish appellant’s claim.
In his August 1, 2018 report, Dr. Krastins opined that appellant’s activities as a postal
worker “likely” exacerbated her CTS. He explained that repetitive arm movements and activity
were known to worsen CTS symptoms. The Board has held that a medical opinion that is
speculative or equivocal in nature is of diminished probative value.12 Moreover, a medical opinion
must explain how the implicated employment factors physiologically caused, contributed to, or
8

R.G., Docket No. 19-0233 (issued July 16, 2019); S.W., Docket No. 18-1489 (issued June 25, 2019).

9

D.O., Docket No. 18-0086 (issued March 28, 2018).

10

See R.C., Docket No. 19-0376 (issued July 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
11

C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued December 31, 2018).

12

C.B., Docket No. 20-0464 (issued July 21, 2020).

5

aggravated the specific diagnosed conditions.13 A well-rationalized opinion is particularly
warranted when there is a history of preexisting conditions.14 Thus, Dr. Krastins’ August 1, 2018
report is also insufficient to meet appellant’s burden of proof.
On July 23, 2018 Dr. Lore diagnosed persistent mild-to-moderate median neuropathy
consistent with CTS; however, he did not address causal relationship. As noted above, a medical
report that does not provide an opinion on causal relationship is of no probative value.15
The remaining evidence includes an April 24, 1998 report by Dr. Kim who diagnosed
bilateral thumb trigger fingers with associated CMC joint arthritis, a June 2, 2006 report from
Dr. Zhang who diagnosed mild CTS likely due to diabetes, and an August 7, 2006 report from
Dr. Abraham who also diagnosed CTS. Neither physician addressed causal relationship.16
Therefore, their reports are insufficient to meet appellant’s burden of proof.17
Appellant also submitted a June 25, 2018 electrodiagnostic testing report. The Board has
held that reports of diagnostic tests, standing alone, lack probative value as they do not provide an
opinion on causal relationship between the accepted employment factor(s) and a diagnosed
condition.18
As the medical record does not contain rationalized medical evidence establishing a causal
relationship between appellant’s diagnosed condition and the accepted employment factors, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral CTS
causally related to the accepted factors of her federal employment.

13

Id.

14

D.M., Docket No. 16-0346 (issued June 15, 2017).

15

Supra note 11.

16

The Board further notes that their reports predate the 2018 occupational disease claim, as well as the date
appellant alleged that she was first aware of her condition on May 5, 2018.
17

Id.

18

C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
New York, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-1218
Issued: October 24, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 1, 2014 appellant filed a timely appeal from a March 25, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as
No. 14-1218. By its March 25, 2014 decision, OWCP denied appellant’s claim for traumatic
injury. 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.
The Board has duly considered the matter and notes that, in the case of William A.
Couch,2 it held that, when adjudicating a claim, OWCP is obligated to consider all evidence
properly submitted by a claimant and received by OWCP before the final decision is issued. In a
letter dated March 12, 2014, received by OWCP on March 24, 2014, a report of Dr. Nazar H.
Haidri, Board-certified in psychiatry and neurology, was received
By decision dated March 25, 2014, OWCP denied appellant’s claim on the grounds that
he had not submitted any medical evidence containing a diagnosis in connection with the
1

5 U.S.C. § 8101 et seq.

2

41 ECAB 548 (1990).

traumatic event of November 8, 2013. OWCP indicated that the most recent medical report
received after issuance of its development letter was dated February 6, 2014.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that Dr. Haidri’s letter dated March 12, 2014 and received on March 24, 2014 was
not reviewed in its decision. Whether OWCP receives relevant evidence on the date of the
decision or several days before, such evidence must be considered.3 As the Board’s decisions
are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject
matter of the claim properly submitted to OWCP be reviewed and addressed.4 Accordingly, the
case is remanded for a proper review of the evidence and, following any necessary further
development, the issuance of an appropriate final decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2014 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: October 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3

J.I., Docket No. 12-1062 (issued December 12, 2012); William McKennon, 51 ECAB 145 (1999).

4

See Yvette N. Davis, 55 ECAB 475 (2004).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 09-1675
Issued: April 20, 2010

Case Submitted on the Record

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

JURISDICTION
On June 22, 2009 appellant filed a timely appeal from an April 3, 2009 decision of the
Office of Workers’ Compensation Programs denying his recurrence of disability claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained recurrences of disability
commencing on September 30, 2004 causally related to an accepted thoracic strain.
On appeal, counsel asserts that appellant’s physicians provided sufficient rationalized
medical evidence to establish the claimed recurrence of disability. He also contends that the
opinion the impartial medical specialist, is too speculative to represent the weight of the medical
evidence.

FACTUAL HISTORY
The Office accepted that on or before July 14, 2002 appellant, then a 54-year-old
blacksmith/welder, sustained lumbar radiculopathy and aggravation of degenerative disc disease
due to repetitive heavy lifting in the performance of duty.1 On April 29, 2003 Dr. Lawrence B.
Axelrod, an employing establishment physician performing a fitness-for-duty examination,
permanently restricted appellant from lifting more than 20 pounds, climbing ladders, repetitive
bending and twisting. He advised that appellant be allowed to sit for a minimum of four hours a
day. Appellant returned to light duty in July 2002 as a modified custodian, within Dr. Axelrod’s
restrictions. He continued under treatment for his lumbar conditions.2
On October 14, 2004 appellant claimed a recurrence of disability commencing
September 30, 2004 while on light duty. He attributed the recurrence to new work factors,
including walking from the parking lot, sitting in “uncomfortable chairs” and prolonged
standing. Appellant stopped work on October 1, 2004 and did not return. On October 29, 2004
the Office advised him of the additional evidence needed to establish his claim.
Appellant submitted reports dated from July 12 to November 10, 2004 from
Dr. Richard H. Kaplan, an attending Board-certified physiatrist. In an October 25, 2004 report,
Dr. Kaplan mentioned a September 30, 2004 incident but did not provide further details. He
diagnosed L5 plexopathy, L4 nerve root compression, L5-S1 radiculopathy and peripheral
neuropathy, all attributable to the accepted conditions. Dr. Kaplan found appellant totally
disabled for work. Dr. Steven Mandel, an attending Board-certified neurologist, submitted
reports from November 18, 2004 to June 15, 2005 finding diminished ankle jerk reflexes and
distal sensory loss due to lumbar radiculopathy and diabetic neuropathy.
On March 17, 2005 the Office obtained a second opinion from Dr. Robert F. Draper, Jr.,
a Board-certified orthopedic surgeon, who diagnosed an occupationally-related L4-5 disc
herniation. Dr. Draper opined that appellant could perform full-time modified duty with lifting
limited to 50 pounds.
Dr. Kaplan provided additional reports through April 18, 2005. He disagreed with
Dr. Draper’s opinion that appellant could return to work or lift up to 50 pounds. Dr. Kaplan
emphasized that appellant was totally disabled for work due to degenerative disc disease and a
herniated lumbar disc.
The Office found a conflict of medical opinion between Dr. Kaplan, for appellant, and
Dr. Draper, for the government. It selected Dr. David R. Pashman, a Board-certified orthopedic
1

The Office initially denied the claim by February 11, 2003 decision, vacated on April 22, 2004. Appellant
sustained a prior occupational back injury on November 18, 1998, accepted as a thoracic strain under File No.
xxxxx185. This claim is not before the Board on the present appeal.
2

In a May 1 2003 report, Dr. Richard Wender, an attending Board-certified family practitioner, opined that heavy
lifting and repetitive bending at work aggravated and accelerated underlying L5 lumbar stenosis with nerve root
compression and neuropathic pain. Dr. Alexander Vaccaro, an attending Board-certified orthopedic surgeon, stated
in a February 10, 2004 report that heavy lifting, repetitive bending and twisting at work aggravated and accelerated
underlying degenerative disc disease.

2

surgeon, to resolve the conflict. A copy of the medical record and a statement of accepted facts
were provided for his review. Dr. Pashman provided an August 30, 2005 report noting a history
of injury and treatment and reviewing the statement of accepted facts. On examination, he noted
hypesthesia in the left thigh possibly related to diabetic neuropathy, limited lumbar motion,
positive straight leg raising tests and a right knee effusion. Dr. Pashman diagnosed preexisting,
progressive degenerative disc disease, aggravated by the accepted condition. He opined that, if
retrained, appellant could perform sedentary work with lifting limited to 25 pounds.
Dr. Kaplan submitted additional reports through March 27, 2006 noting increasing left
lower extremity symptoms.
By decision dated December 19, 2006, the Office denied appellant’s recurrence claim on
the grounds that the medical evidence did not support a worsening of the accepted conditions as
of September 30, 2004 such that he became disabled from his light-duty job. It accorded the
weight of the medical evidence to Dr. Pashman.
In a November 6, 2007 letter, appellant requested reconsideration. He submitted reports
dated from May 22, 2002 to June 15, 2005 from Dr. Mandel, finding appellant totally disabled
from June 27, 2004 onward due to left femoral neuropathy, diabetic neuropathy, degenerative
disc disease and bilateral lumbar radiculopathy.3 Appellant submitted June 14, 2006, July 11 and
September 24, 2007 reports from Dr. Kaplan finding him totally disabled for work due to lumbar
pain.4
By decision dated January 16, 2008 and reissued February 4, 2008, the Office denied
modification of the December 19, 2006 decision on the grounds that the new medical evidence
submitted did not explain how and why the accepted conditions would disable appellant for work
on and after September 30, 2004.
In a September 8, 2008 letter, appellant requested reconsideration. He submitted periodic
reports from Dr. Kaplan dated from June 20, 2005 through January 19, 2009, finding appellant
totally disabled for work due to progressive disc herniations from L2 through 5 and continued
lumbar pain and spasms. In a June 12, 2008 report, Dr. Kaplan stated that appellant was totally
disabled for work since September 30, 2004 “due to his work[-]related conditions alone.” He
based this opinion on his treatment of appellant for several years and a review of his light-duty
job description.
By decision dated April 3, 2009, the Office denied modification of its prior decision. It
found that the medical evidence did not support that the accepted conditions worsened as of
September 30, 2004 such that appellant could no longer perform his light-duty job. The Office
found that appellant did not allege or establish a change in his light-duty position. It accorded
Dr. Pashman the weight of the medical evidence.

3

July 21, 2003 and February 12, 2004 electromyography and nerve conduction velocity studies showed left L4-5
radiculopathy and diabetic neuropathy.
4

A July 26, 2007 magnetic resonance imaging scan showed disc herniations at each level from T10 to S1.

3

LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “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.”5 When an employee, who is
disabled from the job he or she held when injured on account of employment-related residuals,
returns to a light-duty position or the medical evidence establishes that the employee can perform
the light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence, a recurrence of total disability and to show that he or she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty job requirements.6 An award of compensation may not be based on surmise, conjecture or
speculation or on appellant’s unsupported belief of causal relation.7
ANALYSIS
The Office accepted that appellant sustained lumbar radiculopathy and an aggravation of
degenerative disc disease on or before July 14, 2002. Appellant remained on light duty. On
October 14, 2004 he filed a claim for recurrences of disability commencing September 30, 2004.
Appellant attributed the claimed recurrence to new work factors including sitting, walking and
prolonged standing.
To meet his burden of proof, appellant must demonstrate either a spontaneous change in
the accepted lumbar conditions or in his assigned light duties such that he could no longer
perform his job requirements.8 He thus has the burden of providing sufficient evidence,
including rationalized medical evidence, to establish the causal relationship asserted.9
The Board finds, however, that intervening incidents negated the causal relationship
between the accepted lumbar conditions and appellant’s condition as of September 30, 2004.
Appellant attributed his back pain to sitting in uncomfortable chairs, prolonged standing and
walking to his duty station. The exposure to new work factors after he returned to light-duty
broke the chain of causation stemming from the accepted conditions. The circumstances did not
involve a spontaneous change in the accepted lumbar conditions.10

5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
6

Carl C. Graci, 50 ECAB 557 (1999); see also Terry R. Hedman, 38 ECAB 222 (1986).

7

Alfredo Rodriguez, 47 ECAB 437 (1996).

8

Carl G. Graci, supra note 6.

9

Ricky S. Storms, 52 ECAB 349 (2001).

10

Bryant F. Blackmon, 56 ECAB 752 (2005).

4

On appeal, counsel asserts that appellant’s physicians provided sufficient rationalized
medical evidence to establish the claimed recurrence of disability. The Board finds, however,
that appellant’s physicians did not support a spontaneous change in the accepted lumbar
radiculopathy and aggravation of degenerative disc disease as of September 30, 2004.
Dr. Mandel, an attending Board-certified neurologist, found appellant totally disabled for work
from June 27, 2004 onward due to degenerative disc disease, lumbar radiculopathy and
nonoccupational diabetic neuropathy. He did not mention a worsening of the accepted
conditions on or about September 30, 2004 or find appellant medically incapable of performing
the modified custodian position as of that date. Dr. Kaplan, an attending Board-certified
physiatrist, held appellant off work from September 8, 2004 through January 2009 “due to his
work[-]related conditions alone.” Although he mentioned a September 30, 2004 incident, he did
not describe what happened or indicate that appellant’s condition had spontaneously worsened
that day. As neither Dr. Kaplan nor Dr. Mandel provided medical rationale explaining how and
why the accepted conditions would cause a total disability for work on and after September 30,
2004, their opinions are of insufficient probative value to establish the claimed causal
relationship.11
Counsel also contends that the opinion of Dr. Pashman, a Board-certified orthopedic
surgeon and impartial medical specialist, was too speculative to represent the weight of the
medical evidence. The Office selected Dr. Pashman to resolve a conflict of medical opinion
between Dr. Kaplan, who found appellant totally disabled for work, and Dr. Draper, a Boardcertified orthopedic surgeon and second opinion specialist, who opined that appellant could
perform full-time modified duty. In an August 30, 2005 report, Dr. Pashman provided detailed
physical findings, reviewed the medical record and statement of accepted facts. He opined that
appellant was physically able to work full-time sedentary duty with lifting limited to 25 pounds.
While Dr. Pashman did not specifically address the claimed recurrence of disability commencing
September 30, 2004, he clearly opined that appellant could perform the modified custodial
position. As his opinion was based on a thorough physical examination, review of the medical
record and statement of accepted facts, it is entitled to special weight.12
Appellant did not establish a change in the nature and extent of his accepted condition or
in his light-duty position such that he could no longer perform his assigned duties. Therefore,
the Office’s denial of the claimed recurrence of disability was proper under the law and facts of
the case.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability commencing September 30, 2004.

11

Beverly A, Spencer, 55 ECAB 501 (2004).

12

Solomon Polen, 51 ECAB 341 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2009 is affirmed.
Issued: April 20, 2010
Washington, DC

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

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

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

6