United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Beaumont, TX,
Employer
__________________________________________

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

Docket No. 07-849
Issued: July 26, 2007

Case Submitted on the Record

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

JURISDICTION
On February 6, 2007 appellant filed a timely appeal of the November 13, 2006 decision
of the Office of Workers’ Compensation Programs which affirmed the denial of her traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
September 30, 2005.
FACTUAL HISTORY
On September 30, 2005 appellant, then a 39-year-old correctional officer, filed a
traumatic injury claim for “puss-filled bumps and large red bite marks with flu[-]like symptoms.”
Her injuries allegedly occurred that same day as a result of working in substandard conditions
during Hurricane Rita.

In a separate statement, appellant indicated that she had been working in the Federal
Correctional Complex (FCC) at Beaumont, TX, during Hurricane Rita. On September 30, 2005
there were no available physicians in the Beaumont area. Appellant was seen by the correctional
facility medical staff on September 30, 2005 and was advised to seek outside medical treatment.
The employing establishment authorized the additional treatment (Form CA-16) and on
October 1, 2005, appellant was seen in the emergency room at River Oaks Hospital in Jackson,
MS. That following Monday, October 3, 2005, appellant followed up with another physician in
Columbus, MS.
Appellant reportedly experienced respiratory distress with severe itching, swelling,
redness and running puss from more than 20 insect bite marks on her arms, hands, legs, neck and
face. Because of the approaching storm, she was confined to the Beaumont FCC beginning
September 22, 2005. Appellant and approximately 700 other staff and inmates were crammed
into the upper floor of an open bay-type inmate housing unit. She stated that the facility lost
electrical power, communications capabilities and parts of the roof blew away which caused
water to pour into the housing unit. Appellant characterized the living conditions following the
storm as deplorable. There was no clean water, no plumbing, no air conditioning or ventilation
and raw sewage was present. The trash and debris attracted mosquitoes, flies, ants, gnats,
roaches and rodents. Appellant also described the interior walls as covered with mildew, mold
and fungi. She explained that, while confined at FCC Beaumont during Hurricane Rita and the
aftermath, she continued to discharge her duties as a correctional officer under traumatic and
stressful conditions. Appellant indicated that the temperature was in excess of 100 degrees. This
lasted for more than a week’s time, during which she slept less than two hours per day on a
concrete floor. Appellant claimed that lack of sleep, severe dehydration, respiratory infection,
numerous insect bites and the emotional and physical stress associated with prolonged
confinement all greatly contributed to her elevated blood pressure and hyperglycemia. She
departed FCC Beaumont on October 1, 2005.
Records from the employing establishment’s medical facility confirmed that appellant
received treatment there on September 30, 2005. A Dr. David Dow diagnosed cellulitis, right
lower extremity/insect bite and diabetes mellitus (“NIDDM”). He excused appellant from work
for three days because of her cellulitis and increased blood sugar and advised her to follow-up
with her local physician.
Emergency room treatment records from River Oaks Hospital, Jackson, MS, indicate that
appellant arrived there by ambulance on October 1, 2005. The reported history was that she was
a prison guard in Beaumont, TX, during the storm. Appellant was returning home that day when
she experienced a possible syncopal episode while getting off the plane. She complained of
shortness of breath, dyspenea and insect bites to several areas of her body. Appellant was
hyperventilating upon arrival in the emergency room. She was discharged within a few hours
with a diagnosis of insect bites, right lower extremity, diabetes mellitus and hyperglycemia.
On October 3, 2005 appellant saw Dr. Jesse C. Williams, a Board-certified internist. The
history reported was that of a 39-year-old female who presented for follow-up from River Oaks
Hospital complaining of puss-filled bumps and large red bite marks. The treatment records
further noted that appellant was a Hurricane Rita victim from Beaumont, TX, who had been
“stuck in prison system, law enforcement, developed insect bites all over.” Dr. Williams also

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noted a prior medical history of hypertension and diabetes mellitus. Physical examination
revealed a “blister on the lower portion of the calf.” Appellant had also complained of
palpitations. Dr. Williams’ cardiovascular examination revealed an irregular rhythm which he
identified as a Grade 1/6 murmur. Appellant’s blood pressure was 162/100. According to
Dr. Williams, her primary problem that day was heat exhaustion. He also diagnosed insect bites,
diabetes and hypertension. Dr. Williams recommended obtaining a chest x-ray and advised
appellant to follow-up with him in a couple of days.
An October 3, 2005 chest x-ray showed borderline cardiomegaly. Appellant returned to
see Dr. Williams on October 5, 2005 for complaints of shortness of breath, but by then her skin
lesions had healed and Dr. Williams noted normal skin turgor. Her blood pressure was 170/100.
Dr. Williams diagnosed hypertension, diabetes mellitus, hyperlipidemia, cardiomegaly. He
adjusted appellant’s diabetes and hypertension medications and advised her to see her local
internist soon. Dr. Williams also completed the Form CA-16 appellant obtained from the
employing establishment. He diagnosed borderline cardiomegaly noted that appellant’s diabetes
was out of control and she required adjustments to her prescribed medications.
In a March 2, 2006 letter, Dr. Williams stated that appellant had been under his care from
October 3 to 5, 2005. He noted that she had arrived from Beaumont, TX due to Hurricane Rita
and presented with several insect bites and also had heat exhaustion due to conditions from
Hurricane Rita.
By decision dated March 15, 2006, the Office denied appellant’s claim because she failed
to establish a causal relationship between her claimed medical condition and her employment
exposure.
Appellant requested an oral hearing which was held on July 27, 2006. Following the
hearing she submitted another letter from Dr. Williams dated March 23, 2006. Dr. Williams
stated that she came to his office on October 3, 2005 after having visited the emergency room.
Appellant complained of severe insect bites, hypertension, palpitations and heat exhaustion due
to the conditions of Hurricane Rita. Dr. Williams also stated that appellant had been living under
unusual circumstances at the time he treated her. When appellant returned to his office on
October 5, 2005 her glucose and blood pressure were elevated and she had shortness of breath.
Dr. Williams also indicated that appellant returned for a follow-up visit on March 1, 2006 and at
that time her insect bites were healed and her vital signs were stable.
A Dr. David Dean, from the River Oaks Hospital Emergency Department, submitted an
April 6, 2006 letter describing the treatment appellant received in the emergency room on
October 1, 2005. Appellant had arrived by ambulance with a complaint of dyspnea, possible
syncope and insect bites to the right leg. Multiple tests were administered, including a
computerized tomography (CT) scan of the chest to rule out pulmonary embolus. The CT scan
did not show evidence of pulmonary embolus and the other tests were all within normal limits.
Dr. Dean also stated that appellant’s medical problems included a history of diabetes and her
glucose was found to be elevated. Appellant was discharged later that same day with a diagnosis
of insect bites to the right lower extremity, diabetes mellitus and hyperglycemia. Dr. Dean
indicated that appellant was placed on prophylactic antibiotics and pain medicine and advised to
follow-up with a local physician if her condition did not improve.

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In a November 13, 2006 decision, the Office hearing representative affirmed the
March 15, 2006 decision denying appellant’s claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.3 The second component is whether the employment
incident caused a personal injury.4
ANALYSIS
Between September 30 and October 3, 2005, appellant was diagnosed with no less than
seven separate medical conditions. These included cellulitis and insect bites to her right leg, heat
exhaustion, diabetes mellitus, hyperglycemia, hyperlipidemia, cardiomegaly and hypertension.
Appellant’s claim was not denied due to insufficient evidence of a particular medical diagnosis.
Her claim was denied because the medical evidence failed to establish any of the diagnosed
conditions was either caused or aggravated by her federal employment.
Appellant claimed to have been exposed to numerous insects during her 10-day
confinement at FCC Beaumont, which the hearing representative accepted as having been
factually established. Her claim was properly denied because the medical evidence does not
demonstrate a causal relationship between any of the diagnosed conditions and her employment.
While the medical records mention appellant’s employment in law enforcement and her having
taken shelter at the prison in Beaumont, TX, during Hurricane Rita, there is no clear statement

1

5 U.S.C. § 8101 et seq (2000).

2

20 C.F.R. § 10.115(e), (f) (2006); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty and must
be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors. Id.
3

Elaine Pendleton, 40 ECAB 1143 (1989).

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

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attributing any of her medical conditions to her alleged occupational exposure at FCC Beaumont
between September 22 and October 1, 2005.
Dr. Dow, who first examined appellant at the facility on September 30, 2005, did not
offer an opinion on causal relationship. Dr. Dean commented on the treatment appellant
received in the emergency room at River Oaks Hospital, on October 1, 2005. Dr. Williams is the
only physician to have offered an opinion on causal relationship and he did not attribute
appellant’s heat exhaustion and insect bites to her occupational exposure. He said that she
complained of “severe insect bites … and heat exhaustion due to the conditions of Hurricane
Rita.” While Dr. Williams also noted in his March 23, 2006 letter that appellant was “living
under unusual circumstances at the time” he treated her, Dr. Williams did not describe any
particular living conditions. His earlier treatment records also do not include any specific details
of the conditions that appellant was exposed to at FCC Beaumont during Hurricane Rita. The
fact that some of the diagnosed conditions arose during the course of appellant’s employment,
does not alone demonstrate that the condition is employment related. Consequently, the medical
evidence is insufficient to establish a causal relationship between appellant’s claimed condition
and her employment.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty on September 30, 2005.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sheridan, WY, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-690
Issued: March 16, 2009

Case Submitted on the Record

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

JURISDICTION
On December 31, 2007 appellant, through his representative, filed a timely appeal from
the January 25, 2007 merit decision of the Office of Workers’ Compensation Programs, which
terminated his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case. The Board also has jurisdiction to review the Office
hearing representative’s October 4, 2007 decision affirming the termination.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2) on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On June 19, 1974 appellant, then a 36-year-old nursing assistant, filed a claim for
compensation alleging that his back and leg pain was a result of lifting patients in the
performance of duty. The Office accepted his claim for mid-back strain, bulging lumbosacral
disc and degenerative arthritis at the L5-S2 level. It authorized a March 22, 1977 disc removal

and fusion at the L5-S1 level. Appellant received a schedule award for a six percent permanent
impairment of each lower extremity. He received compensation for temporary total disability on
the periodic rolls.
On April 13, 1998 Dr. Christopher T. Smith, the attending orthopedic surgeon, reported
that he had regularly examined appellant since 1974. He noted that in recent years appellant was
presenting more frequently with low back pain. Dr. Smith described appellant’s complaints,
medications and his findings on physical examination. X-rays from 1994 revealed marked
progression of disc space narrowing with peripheral osteophyte formation and degenerative
changes throughout the lumbar spine. There were also several levels in the lower dorsal spine
bridged by osteophytes. Dr. Smith diagnosed lumbar spondylosis, spinal stenosis and status
postoperative lumbar discectomy and fusion. He concluded that appellant would never work
again:
“In view of [appellant’s] symptoms, physical findings and radiographic findings I
do not feel that he will ever be able to return to gainful employment. It is my
opinion that the work injury which induced the herniated disc which subsequently
necessitated disc excision and arthrodesis has resulted in a cascade affect of ever
worsening low back symptoms as described above. An arthrodesis at one level
will transfer the stresses to uninvolved areas and subsequently cause strain in
these regions.”
On July 9, 2001 Dr. Smith reported that appellant’s condition had worsened. He stated
that a magnetic resonance imaging (MRI) scan showed severe lumbar spondylosis with marked
disc space degeneration at the L2-3 level and disc herniation at the L1-2, L2-3 and L3-4 levels.
There were old postsurgical changes of the L4-5 level with stenotic changes as well. Dr. Smith
stated: “[Appellant’s] pain has been intractable and he has been using Tylox on a daily basis to
control the pain.” He also stated that appellant had been on a variety of anti-inflammatory
medications to no avail and that a rheumatologist had recently concluded there was nothing
further to offer surgically. Dr. Smith concluded: “[Appellant’s] symptoms and physical findings
and radiographic findings are continuing to deteriorate over the recent years. He will never be
able to return to gainful employment.”
On December 27, 2004 Dr. Smith again reported that appellant would never be able to
return to gainful employment. He noted that appellant would be 67 years old in January 2005.
Appellant had been disabled since 1998 with severe lumbar spondylosis and degenerative disc
disease, with degenerative changes through his dorsal and cervical spine. He also underwent
bilateral knee replacements. Appellant still had symptoms of lumbar spinal stenosis, still took
anti-inflammatories and narcotic analgesics on a regular basis, was unable to sit, stand or walk
for prolonged periods of time and had been seen by a variety of practitioners who could offer no
further surgical treatment.
Dr. Dean C. Sukin, an orthopedic surgeon, offered a second opinion on May 17, 2006.
He related the history of appellant’s present illness and reviewed the medical record. Dr. Sukin
described appellant’s complaints and his findings on examination. He assessed appellant with
severe global pain and multiple medical conditions causing disability. Dr. Sukin stated that
appellant, on occasion, may be able to do bursts of activity that include bending, twisting and

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lifting; however, it was also his opinion that, if appellant did that on a regular basis, it could
cause him severe exacerbation of his underlying condition, not only his low back but his
additional comorbidities. He advised that appellant had objective evidence of active and
disabling residuals of the accepted employment injury and that appellant’s subjective complaints
were commensurate with the objective findings. Asked whether appellant could perform the
duties of his date-of-injury job, Dr. Sukin replied:
“No. In my opinion this patient could not do the lifting, twisting and daily
activities that are required to take care of patients as a nursing aide or assistant. It
is my opinion that this patient may be able to do a light to sedentary job up to a
total of two hours per day. However, even sitting for an extended period of time
would be extremely difficult for this individual as a result of [appellant’s] lumbar
condition. He would need to be able to take frequent breaks where he alternates
sitting and standing, not do any significant lifting, twisting, kneeling or
squatting.”
Dr. Sukin considered appellant’s prognosis to be guarded. He stated there were no
further treatment options. Dr. Sukin noted that appellant had an additional problem -- chronic
lymphedema -- that currently needed to be evaluated by the primary care physician on an urgent
basis. Appellant was falling and tripping frequently and had a more increased shortness of
breath than was otherwise normal.
The employer offered appellant a job as a health aide/sitter, working two hours a day
“increasing as allowed by attending physician.”1 Physical demands were described as sedentary,
primarily sitting. They included rare to intermittent walking/standing and no lifting, with the
exception of very light items. The employee would be allowed to change positions as needed for
comfort.
On June 27, 2006 Dr. Smith reported that appellant had to give up some of his walking
activities because of symptoms suggestive of neurogenic claudication: “If he stands for a period
of time or walks a distance he gets a heavy, achy, weak feeling into both lower extremities.”
After describing his findings on physical examination, Dr. Smith addressed appellant’s capacity
to work:
“[Appellant] recently underwent an independent medical exam and it was the
examiner’s feeling that [he] might be able to work at a sedentary job for up to two
hours a day. He has constant pain and is undergoing a pain treatment regimen and
he had abundantly documented orthopedic problems precluding gainful
employment. As I have stated several times in the past, I do not feel that

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Duties included: “Through conversation, games reading, watching TV together, etc., engages patient as
possible; distracting them from harmful activities such as pulling out IV’s or tubes, wandering away from unit or
attempting to get out of bed or chair without help when patient is a high fall risk. Delivers ice water, facial tissues
and other patient comfort items to patients. Inventories patient’s personal belonging. Assist nursing staff with
feeding of patients and performs other similar duties of a simple nature associated with service to the patient and the
patients’ immediate environment.”

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[appellant] is capable of any gainful employment on a regular basis given his
musculoskeletal problems.”
On July 7, 2006 the Office informed appellant that the offered position was found to be
suitable to his work capabilities and was currently available. It gave him 30 days to accept the
offer or provide an explanation for refusing it. The Office notified appellant of the penalty under
5 U.S.C. § 8106(c)(2) for refusing an offer of suitable work.
Appellant declined the offer. His attorney noted that he took prescription narcotic pain
medication for his injury every four hours, which made him drowsy and impaired his judgment.
Counsel also noted that appellant had numerous physical limitations and that a health aide would
need more range of movement. He argued that constant back pain would distract appellant and
take away his focus from work. Counsel argued that appellant was diagnosed with bipolar
disorder, so it did not seem appropriate for him to be around patients. Finally, he stated that it
would be against doctor’s order for appellant to take the job as a health aide. Counsel stated that
appellant’s doctor was in the best position to know whether the job was suitable.
The Office provided Dr. Smith with a copy of Dr. Sukin’s report and a copy of the job
offer and asked for his opinion on whether appellant could perform the duties two hours a day.
On September 1, 2006 Dr. Smith stated that his impression remained unchanged that appellant
was incapable of sustained gainful employment. “[Appellant’s] condition in fact will
deteriorate,” he stated. “I have expressed this opinion on at least two previous occasions and
remain firm in this opinion.”
On October 10, 2006 the Office informed appellant that his reasons for refusing to accept
the offered position were not valid. It gave him 15 days to accept the offer or lose his
entitlement to wage-loss and schedule award benefits.
In a decision dated January 25, 2007, the Office terminated appellant’s compensation
under 5 U.S.C. § 8106(c)(2) for refusing an offer of suitable work. It noted that Dr. Sukin
provided his opinion that appellant could perform light or sedentary work for two hours a day.
The Office found that Dr. Smith failed to provide new comments when asked to review
Dr. Sukin’s report and the position description. It had provided Dr. Sukin with surveillance
video of appellant’s outdoor activities and found that the opinion of appellant’s physician had
diminished probative value because he was not apprised of those activities.
On May 18, 2007 Dr. Smith repeated appellant’s history and findings and his opinion that
appellant was no longer capable of sustained gainful employment. “[Appellant] might be able to
carry out certain activities occasionally,” he stated, “but not on a long-term basis.” Dr. Smith
described his clinical findings from May 15, 2007. He reviewed the surveillance video and
explained that appellant’s ability to carry out such activities on a given day was not at all
inconsistent with his chronic back pain. Dr. Smith stated, however, that appellant would be
unable to carry those activities on a daily basis.
Reviewing Dr. Sukin’s report, Dr. Smith noted that the second-opinion physician related
that appellant “may” be able to do a light to sedentary job “up to” a total of two hours per day.
There was no definite conclusion, he stated, that appellant could do these activities on a regular

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basis. Dr. Smith concluded: “It is my opinion that [appellant] is incapable of sustaining gainful
employment and that his condition will continue to deteriorate and may in fact require more
surgical treatment for his low back and most likely his knees as well.”
On June 19, 2007 Dr. Anup S. Sidhu, appellant’s psychiatrist, reported that appellant had
been a patient of his since November 27, 2002. He felt that the instability of appellant’s moods
was aggravated by his medical condition and he did not feel that appellant could work, even in a
sedentary position.
On June 26, 2007 Dr. Smith addressed the duties of the offered position: “On a given
day I am certain that [appellant] could carry out the principle duties and responsibilities detailed
in the job description. The problem is that he could not carry out these duties on a predictable
daily basis.” Dr. Smith noted that appellant was under treatment for chronic pain and was taking
significant doses of Schedule I and at times Schedule II narcotics. He stated that appellant also
had poor equilibrium and ‘not infrequent’ falls. Dr. Smith continued:
“I feel that [appellant’s] work activities would be inconsistent and that the side
effects of the medications he takes could cause somnolence and compromised
judgment. I again want to emphasize that [his] condition is only going to
deteriorate from its present state. I predict that [appellant] will have more
debilitating problems with [his] spine which might necessitate further treatments
in addition to the epidural steroid injections he is now receiving. His knees will
undoubtedly wear out and require revision surgery and his general medical
condition continues to deteriorate.”
In a decision dated October 4, 2007, an Office hearing representative affirmed the
termination of appellant’s compensation. The hearing representative found that the job offer met
the restrictions assessed by Dr. Sukin and was compatible with the responsibilities Dr. Smith
stated he could perform.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.2 The Office
has authority under this section to terminate compensation for any partially disabled employee
who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work and has the burden
of establishing that a position has been offered within the employee’s work restrictions, setting
forth the specific job requirements of the position.3 In other words, to justify termination of

2

5 U.S.C. § 8106(c)(2).

3

Frank J. Sell, Jr., 34 ECAB 547 (1983).

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compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.4
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5
ANALYSIS
The Office terminated compensation under 5 U.S.C. § 8106(c)(2) on the grounds that
appellant refused an offer of suitable work. It bears the burden of proof to justify imposing such
a penalty. The Office has the burden of showing that the work offered to and refused by
appellant was suitable.
The Office based its suitability finding on Dr. Sukin’s May 17, 2006 report. Dr. Sukin,
the referral orthopedic surgeon, concluded that appellant “may be able” to do a light to sedentary
job up to a total of two hours per day, but Dr. Smith, the attending orthopedist, disagreed. He
made clear since 1998 that appellant would never be able to return to gainful employment. On
May 18, 2007 Dr. Smith reviewed Dr. Sukin’s report and unequivocally opined that appellant
was incapable of sustaining gainful employment.
Dr. Smith had regularly examined appellant since 1974. He addressed appellant’s
history, symptoms, physical findings and diagnostic testing. Dr. Smith noted a deterioration of
appellant’s condition and advised that he was totally disabled for work. The Board finds that his
opinion on the suitability of the offered position is as authoritative and probative as the opinion
provided by Dr. Sukin.
If the attending physician finds that the claimant should not perform the duties of the
offered position and a second opinion specialist states that claimant can in fact perform those
duties, then a conflict in the medical evidence exists as to whether the position offered can be
considered suitable.6
The Board finds a conflict in medical opinion necessitating referral to an impartial
medical specialist under section 8123(a) of the Act. Due to the unresolved conflict in medical
opinion, the weight of the evidence does not establish the suitability of the offered position. The
Board finds that the Office did not discharge its burden of proof to justify the termination of

4

Glen L. Sinclair, 36 ECAB 664 (1985).

5

5 U.S.C. § 8123(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(4)(b) (July 1997).

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appellant’s compensation under section 8106(c)(2).
January 25 and October 4, 2007 decisions.7

The Board will reverse the Office’s

CONCLUSION
The Board finds that the Office did not meet its burden to terminate appellant’s
compensation under 5 U.S.C. § 8106(c)(2). There is an unresolved conflict in medical opinion
on whether the offered position is suitable.
ORDER
IT IS HEREBY ORDERED THAT the October 4 and January 25, 2007 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: March 16, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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The Office cannot render a decision that considers evidence in an investigative memorandum until the
investigative memorandum and any supporting documentation is included in the case record. The Act Circular No.
08-04 (issued March 31, 2008). The Office also has the responsibility to make the claimant aware that it is
providing video evidence to a medical expert. J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007);
R.C., 60 ECAB ___ (Docket No. 08-1641, issued January 12, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
College Park, GA, Employer
__________________________________________

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

Docket No. 19-0782
Issued: September 9, 2019

Case Submitted on the Record

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

JURISDICTION
On February 26, 2019 appellant filed a timely appeal from a January 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 19, 2019, as he no longer had residuals or
disability causally related to his accepted November 7, 2016 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 9, 2016 appellant, then a 47-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on November 7, 2016 he unexpectedly twisted his back
while holding a roller board suitcase at shoulder level while in the performance of duty. He
stopped work on November 8, 2016 and received continuation of pay (COP). On December 1,
2016 OWCP accepted appellant’s claim for lower back (lumbar) strain. Appellant received COP
through December 23, 2016, and OWCP paid wage-loss compensation for temporary total
disability beginning December 24, 2016.2
Appellant received medical treatment from Dr. Edward K. Kahn, a Board-certified
orthopedic surgeon. In an April 11, 2017 report, Dr. Kahn indicated that appellant was being
evaluated for complaints of back pain following a work-related injury. He diagnosed lumbar
strain. Dr. Kahn reported that appellant’s subjective complaints far outweighed any objective
findings and opined that there was a “significant amount of symptom magnification going on.”
OWCP referred appellant, along with a statement of accepted facts (SOAF) and a copy of
the record, to Dr. Michael A. MacKay, a Board-certified orthopedic surgeon, for a second-opinion
evaluation regarding the status of his work-related November 7, 2016 employment injury and work
capacity. In a May 11, 2017 report, Dr. MacKay reviewed appellant’s history of injury and noted
that appellant’s claim was accepted for lumbar sprain. Upon physical examination of the lumbar
spine, he observed mild tightness in the hamstrings with increased lower back pain on straight leg
raise bilaterally and tenderness in the midline, paraspinal lumbosacral, and sacroiliac (SI) regions.
Dr. MacKay opined that appellant still suffered residuals of his lumbar sprain injury. He
recommended that appellant begin a work hardening program to expedite his return to work.
On December 21, 2017 OWCP referred appellant along with a statement of accepted facts
(SOAF) and a copy of the record and a series of questions to Dr. Nicholas A. Grimaldi, a Boardcertified orthopedic surgeon, for another second-opinion evaluation regarding the status of his
work-related November 7, 2016 employment injury and work capacity. In a January 29, 2018
report, Dr. Grimaldi reviewed the SOAF and the medical evidence of record. He described the
November 7, 2016 employment incident and noted that appellant’s claim was accepted for lumbar
sprain. Upon examination of appellant’s lumbar spine, Dr. Grimaldi observed exquisite tenderness
upon palpation of the low back. He related that appellant was very guarded upon palpation and
that he cried out in pain. Dr. Grimaldi reported range of motion of 65 degrees forward flexion and
20 degrees back extension. He related that straight leg raise testing elicited pain in appellant’s
back. Dr. Grimaldi opined that appellant had “symptom magnification appreciated by his exquisite
tenderness to palpation to his lumbar facet joints.” He noted that appellant had negative Faber’s
test over the sacroiliac joint, negative Gaenslen’s test, and his magnetic resonance imaging (MRI)
scan findings were negative for any significant type of operative pathology.
In response to OWCP’s questions, Dr. Grimaldi reported that there were no physical
examination findings to support that appellant continued to have a lumbar sprain and opined that
he had symptom magnification with demonstrated weakness to his bilateral legs. He explained
2

Effective June 25, 2017, OWCP placed appellant on the periodic compensation rolls.

2

that strains of the lumbar region typically resolve within two to three months of conservative care.
Dr. Grimaldi reported that appellant should be able to return to work without any restrictions, but
recommended that appellant undergo a functional capacity evaluation (FCE) to determine his work
capability because he was at a high risk of malingering.
In a February 27, 2018 report, Dr. Samuel A. Yoakum, Board-certified in physical
medicine and rehabilitation, treated appellant for complaints of sacroiliac (SI) joint pain. Upon
examination of appellant’s lumbar spine, he observed decreased extension and rotation to the right
due to right upper buttock pain. Gaenslen’s and SI joint compression tests were significantly
positive on the right. Dr. Yoakum diagnosed SI joint pain and thoracolumbar scoliosis and
completed a work status note indicating that appellant could work limited duty.
On March 26, 2018 appellant underwent a functional capacity evaluation (FCE), which he
was unable to complete due to elevated blood pressure.
In a March 30, 2018 work capacity evaluation form (Form OWCP-5c), Dr. Grimaldi
indicated that appellant was capable of performing his usual job without restriction. He further
noted that appellant needed to see his primary care physician for blood pressure control.
Dr. Grimaldi additionally commented that appellant knew he needed to take his blood pressure
medicine prior to the FCE and he did not. He also indicated that appellant did not even take any
medication for pain. Lastly, Dr. Grimaldi commented that appellant would be placed on regular
duty until his blood pressure was under control and he could retake the FCE.
In a May 30, 2018 supplemental report, Dr. Grimaldi opined that appellant’s accepted
work-related lumbar sprain had resolved based on clinical objective findings. He noted that both,
he and Dr. Kahn, reported findings of symptom magnification. Dr. Grimaldi explained that the
findings of symptom magnification through light palpation demonstrated that appellant’s
symptoms were not from a lumbar sprain, and that his symptoms were potentially nonorganic. He
further commented that appellant had undergone conservative treatment, as well as injections, and
explained that lumbar sprains typically resolve within two to three months with rest and
conservative care. In conclusion, Dr. Grimaldi stated that appellant’s “continued symptoms [were]
not due to a lumbar sprain [and were] potentially due to nonorganic causes based on clinical
objective findings.”
On July 26, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because his November 7, 2016 employment injury had resolved. It found that
the weight of medical evidence rested with the January 29 and May 30, 2018 reports of
Dr. Grimaldi, who found that appellant’s lumbar sprain had resolved and that he was no longer
disabled from work. OWCP afforded appellant 30 days to submit additional evidence or argument,
in writing, if he disagreed with the proposed termination.
On September 4, 2018 OWCP received appellant’s response to its proposed termination.
Appellant noted his disagreement with Dr. Grimaldi’s medical opinion and indicated that another
physician had agreed with Dr. Yoakum’s findings of nerve inflammation and damage in the right
facet joint. He related that he had spoken with an OWCP nurse about changing his diagnosis from
lumbar spine strain to facet joint injury. Appellant asserted that he was not magnifying his
symptoms and simply wanted his back pain fixed.

3

OWCP also received an April 27, 2017 work status note from a physician with an illegible
signature.
By decision dated January 18, 2019, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective January 19, 2019. It found that the weight of
medical evidence rested with Dr. Grimaldi, OWCP’s second-opinion examiner, who concluded in
reports dated January 29 and May 30, 2018, that appellant had no further residuals or disability
due to his accepted November 7, 2016 employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5 The right to medical benefits
for an accepted condition is not limited to the period of entitlement for disability compensation.6
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition, which require further medical treatment.7
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 19, 2019.
OWCP improperly terminated appellant’s wage-loss compensation based on
Dr. Grimaldi’s second-opinion reports as he did not provide sufficient medical reasoning in his
January 29 and May 30, 2018 reports to establish that appellant’s accepted lumbar sprain had
resolved and that appellant was able to return to work. Dr. Grimaldi opined that there were no
physical examination findings to support that appellant still had residuals of his accepted lumbar
sprain. He explained that appellant had “symptom magnification” and indicated that strains
typically resolve within two to three months with rest and conservative care.
In his January 29, 2018 report, Dr. Grimaldi recommended that appellant undergo an FCE
to determine work capacity. On March 26, 2018 appellant was unable to complete an FCE due to
elevated blood pressure. Instead of referring appellant for another FCE, however, OWCP
terminated appellant’s wage-loss compensation and medical benefits based on Dr. Grimaldi’s
medical opinion. The Board has found that, once OWCP undertakes development of the medical
3

A.G., Docket No. 18-0749 (issued November 7, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

A.G., id.; see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

6

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

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evidence, it has the responsibility to do so in a manner that would resolve the relevant issues in the
case.8 As such, OWCP should have obtained a supplemental report from Dr. Grimaldi after
appellant successfully completed an FCE and Dr. Grimaldi had an opportunity to review the results
and provide an opinion regarding appellant’s ability to return to work.9
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 19, 2019.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

See R.B., Docket No. 14-1043 (issued December 12, 2014); V.H., Docket No. 14-0433 (issued July 3, 2014).

9

See W.J., Docket No. 18-1376 (issued March 29, 2017) (where the Board found that OWCP failed to complete
the development of the medical record as recommended by a second-opinion examiner who requested updated
diagnostic testing in order to assess whether appellant’s employment injury and disability had resolved).

5


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

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

Docket No. 15-58
Issued: May 1, 2015

Case Submitted on the Record

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

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from the September 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden to establish a recurrence of disability
beginning January 16, 2014 causally related to his July 13, 2006 work injury.
FACTUAL HISTORY
On July 13, 2006 appellant, a 47-year-old letter carrier, sustained a traumatic injury in the
performance of duty when he was involved in a motor vehicle accident. OWCP accepted his
claim for neck and lumbar sprains, herniated discs at C3-6, depressive disorder related to a
1

5 U.S.C. § 8101 et seq.

medical condition, pain disorder associated with psychological and general medical condition,
spinal stenosis in the cervical region, impotence of organic origin, and hypertension not
otherwise specified. Appellant underwent spinal surgeries in 2008 and 2011.
Appellant returned to full-time limited duty in June 2013. He claimed compensation for
wage loss, however, beginning January 16, 2014.
Appellant was seen in the emergency room on January 17, 2014 for upper back/bilateral
shoulder/neck pain that gradually worsened “in the setting of frequent pushing/pulling of heavy
drawers at this place of employment.” He was diagnosed with muscle strain and prescribed
medication and a heating pad. Appellant was advised to limit his heavy pushing/pulling for four
to six weeks.
Dr. Lance La Certe, a clinical psychologist, saw appellant on January 22, 2014.
Appellant was having increased pain from pulling trays at work, so he left early from work. He
stated that he received a prescription for being taken off work and was given restrictions not to
pull trays for the next four to six weeks. Appellant advised that he was requested to attend a
meeting with the supervisor’s boss. He insisted on union representation, and when a union
representative was not present, he became increasingly agitated. When told they were going to
set up a telephone conversation, appellant felt that he was being lied to and manipulated.
Appellant indicated that he was feeling agitated and needed to leave. The main supervisor
stepped in front of him and told him he was not going anywhere and would be absent without
leave if he did. Appellant felt harassed and intimidated but ultimately signed papers and left. He
stated that he was tired of dealing with the harassment.
Appellant was seen at the emergency room on January 27, 2014 and received a note
stating that he could return to work starting February 9, 2014.
Dr. Alexander H. Zimmer, a Board-certified neurologist, noted on February 3, 2014 that
appellant had experienced a recent flare-up of cervical pain and headaches “apparently due to
increased physical activity at work between Christmas and New Year’s.
Appellant followed up with Dr. La Certe on February 6, 2014. Dr. La Certe noted that
appellant’s mental status continued to be compromised with the ongoing conflicts he had with
the employing establishment.
Appellant saw Dr. La Certe again on February 20, 2014. He discussed the recent meeting
with a manager and his immediate supervisor. Appellant left the meeting and again expressed
his unwillingness to work in the most recent environment. Dr. La Certe noted that appellant
continued to be embroiled in conflict with the employing establishment and felt that he was not
being adequately represented by his union.
Appellant saw Dr. Sheldon Goldberg, a Board-certified physiatrist, on February 25, 2014.
He told Dr. Goldberg that he was very frustrated with his “hostile work environment.”
On March 3, 2014 appellant saw Dr. Zimmer for clarification of his return to work status
from both a medical and psychiatric point of view. It was Dr. Zimmer’s impression that
appellant had a recent flare-up of pain symptoms in the posterior neck and upper trapezius, as
2

well as headaches associated with increased work activities between Christmas and New Year’s.
Records from Dr. La Certe, as well as the history appellant was reporting, indicated that
appellant had flare-ups of his depression and anxiety symptoms in the past associated with issues
with specific supervisors and other personnel at work. Dr. Zimmer advised that appellant’s
return to work would be contingent on improvement in his depression.
In a decision dated March 25, 2014, OWCP denied appellant’s disability claim. It
explained that unless he was taken off work for the medical conditions that were accepted as
work related, the period of disability he claimed was not compensable. OWCP noted that
Dr. Zimmer offered no objective findings to support any disability for work. His report was
based entirely on appellant’s subjective complaints of pain.
On April 15, 2014 Dr. La Certe found that the stress of appellant performing his duties
exacerbated his depression and anxiety. Based on appellant’s report, Dr. La Certe had no
evidence that the deterioration of appellant’s mental status was due to a new injury. “I am
continuing to treat this as a recurrence of [appellant’s] depression and pain disorder symptoms.”
Dr. La Certe noted that Dr. Zimmer’s identification of a flare-up of pain symptoms associated
with increased work activities supported his impression of a continuation of appellant’s original
injuries.”
On June 12, 2014 appellant described to Dr. Zimmer a flare-up of his depression earlier
in the year. This was felt to be related to his response to the flare-up of pain symptoms
associated with his work activities over the week between Christmas and New Year’s.
Dr. Zimmer noted that appellant had stress at work dealing with supervisors. “This would also
be a contributing factor to his depression. I would consider this a recurrence of [appellant’s]
depression and pain disorder syndrome.”
OWCP referred appellant to Dr. John D. Douthit, a Board-certified orthopedic surgeon.
On June 18, 2014 Dr. Douthit related appellant’s history and his findings on physical
examination. He reviewed OWCP’s statement of accepted facts and appellant’s medical records.
It was Dr. Douthit’s opinion that appellant could work sedentary duty with restrictions of no
lifting over 10 pounds. He noted that the reason appellant was giving for his inability to work -headaches and back spasms -- could not be objectively verified. Dr. Douthit found no objective
physical findings that would support total disability.
OWCP also referred appellant to Dr. Randolph W. Pock, a Board-certified psychiatrist,
who evaluated appellant on August 8, 2014. Dr. Pock related appellant’s history and complaints.
He described the results of testing and examination. It was Dr. Pock’s opinion that appellant had
a psychiatric condition as a result of his injury. He agreed with Dr. La Certe and Dr. Douthit that
appellant’s symptoms, by themselves, did not prevent him from working. Since appellant’s
allegations of a hostile work environment, in which he was asked to exceed his physical
restrictions, were not accepted as factual by OWCP, Dr. Pock could not comment on that portion
of appellant’s statement. Dr. Pock concluded that appellant was capable of working with the
physical restrictions he was given “in a situation which he does not find hostile or threatening.”
On August 14, 2014 the employing establishment contended that appellant’s absence
from work beginning January 16, 2014 was due to administrative issues and not to a worsening

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of the accepted injuries. It explained that he was to perform his limited duties at his discretion.
Appellant did not do any one task for extended periods of time, as the attending physician
limited most of his physical activities to “as tolerated.”
The employing establishment also explained that appellant’s duties did not change. The
November 2013 assignment did not add more duties; it only provided more details about the
duties he had been performing since June 2013. With respect to appellant’s allegation of
frequently pushing and pulling heavy drawers, the employing establishment explained:
“[Appellant] refers to an assignment whereby he was tasked with locating a
missing document in the filing system. There are approximately 600 files in the
filing system, however, [he] was never tasked with accessing every file.
[Appellant] was asked to look in the files he recently added documents in to see if
the missing document had been misfiled. This task did not require him to
constantly pull and push to look in the files. [Appellant] would have to pull the
file drawer out, reach in and retrieve the individual file folder, open it to see if the
documents were in it then replace the file folder and repeat until he either needed
to move to another task to stay within his restrictions of ‘as tolerated’ or he was at
the end of that file drawer then push the drawer back into the filing system. [He]
did not perform this task for an extended period of time each day.”
The employing establishment noted that appellant presented new restrictions, dated
January 17, 2014. The manager scheduled a meeting with him on January 21, 2014 to offer a
new modified assignment based on the new restrictions, but he walked out of the meeting stating
that he was not comfortable meeting the manager. Appellant did not return. The employing
establishment added that there was no incident with appellant’s supervisor or other workers. The
manager conducted an investigative interview with him on January 10, 2014, but it was
determined that discipline was not warranted. She tried to schedule other meetings with him, but
appellant refused to report to work. The manager advised that these were administrative actions.
In a decision dated September 17, 2014, an OWCP hearing representative affirmed the
denial of appellant’s disability claim. The hearing representative found that he had failed to
submit probative and reliable evidence sufficient to establish the occurrence of an objective
change in the nature and extent of his injury-related conditions or a verifiable change in the
nature and extent of his light-duty job requirements.
The hearing representative found the case file devoid of a well-reasoned medical opinion,
based on a complete and accurate factual and medical history, explaining how and why any of
the accepted medical conditions worsened on or around January 16, 2014 such that appellant
could no longer continue working in the modified full-time position he had held since June 2013.
The hearing representative further found that appellant had not established a factual basis
for the alleged increase in work duties. He found that appellant’s description of the physical
requirements of searching for a specific document was inconsistent with the statement provided
by the employing establishment. The hearing representative found that appellant’s allegation
was of diminished credibility and could not be accepted as factual. This in turn diminished the

4

probative value of opinions given by physicians that appellant was unable to continue working
due to an increase in his pain symptoms brought on by this specific work activity.
Further, the hearing representative found the case file devoid of evidence to support
appellant’s allegations of a hostile work environment. As he provided no substantial, reliable, or
probative evidence supportive of his allegations of harassment or abuse, the hearing
representative found that Dr. Le Certe’s opinion was based on a unsubstantiated factual history
and was therefore of diminished probative value.
On appeal, appellant submits a packet of information concerning billing charges and
collection efforts. He argues the hearing representative had a conflict of interest, as he was once
an OWCP claims examiner. Appellant indicates that the job offer was in error. He states that,
when he performed the job, he experienced muscle spasm, increased neck pain, lower back pain,
and persistent headache. Appellant notes that he and his attorney responded to the employing
establishment’s submissions. He indicates that a directive to input data and update records into
the computer was a direct violation of his work-related injury (restrictions). Therefore, appellant
states, the employing establishment created a hostile work environment. He had requested an
ergonomic workstation evaluation. There was a disregard of appellant’s work-related injury. He
was denied the ergonomic evaluation.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4
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 of
record establishes that he or she can perform the light-duty position, the employee has the burden
of establishing by the weight of the reliable, probative, and substantial evidence a recurrence of
total disability and show that he or she cannot perform such light duty. As part of his or her
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the light-duty job requirements.5

2

Id. at § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Id. at § 10.5(x).

5

Terry R. Hedman, 38 ECAB 222 (1986).

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ANALYSIS
The record shows that appellant accepted and returned to full-time limited duty in
June 2013. He would later file claims alleging total disability for work beginning January 16,
2014 due to the injury he sustained on July 13, 2006. Appellant therefore has the burden to show
a change in the nature and extent of his injury-related condition or a change in the nature and
extent of his light-duty job requirements.
More specifically, appellant must show that his inability to work beginning January 16,
2014 was caused by a spontaneous change in an accepted medical condition without an
intervening injury or new exposure in the work environment that caused the illness. However,
there is no indication in the record that his accepted medical conditions naturally progressed or
spontaneously worsened to the point that he could no longer perform his limited duty. Appellant
instead informed the emergency room on January 17, 2014 that his upper back/bilateral
shoulder/neck pain gradually worsened from frequent pushing and pulling of heavy drawers at
work. While this might be relevant to a new occupational disease claim, it does not support that
a spontaneous recurrence of disability caused the July 13, 2006 work injury as claimed.
Appellant indicated that his exposure to new employment factors were responsible for his
inability to work beginning January 16, 2014.
Appellant told Dr. La Certe, the clinical psychologist, that the increased pain appellant
experienced from pulling and pushing file cabinet drawers caused him to leave early from work.
He then explained that he became increasingly agitated during a meeting with the manager and
needed to leave, but she stepped in front of him and told him that he was not going anywhere,
and if he did leave, he would be considered absent without leave. Appellant felt harassed and
intimidated and never returned to work. He noted that he was tired of dealing with the
harassment.
Appellant attributed his alleged inability, or unwillingness, to continue working to the
interaction he was having with management. This does not support a natural progression or
spontaneous worsening of the accepted emotional conditions and it does not support that the
July 13, 2006 work injury caused a recurrence of disability.
Other medical reports confirmed that appellant did not attribute his inability to work
beginning January 16, 2014 to a spontaneous change in his accepted medical conditions. He told
Dr. Zimmer, the neurologist, that he had experienced a recent flare-up of cervical pain and
headaches apparently due to increased physical activity at work between Christmas and New
Year’s. Dr. Le Certe noted that appellant’s mental status continued to be compromised with the
ongoing conflicts he had with the employing establishment. When appellant saw Dr. La Certe
on February 20, 2014, he discussed how he had another meeting with management, but he again
left the meeting unwilling to work in that environment. Dr. La Certe noted that appellant
continued to be embroiled in conflict with the employing establishment and felt that he was not
being adequately represented by the union.
Appellant thereby attributed his frustration to a hostile work environment. He did not
allege that his accepted emotional conditions naturally progressed or spontaneously worsened to
the point that he could no longer perform his limited-duty assignment. Dr. La Certe and

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Dr. Zimmer would later use the word “recurrence” to support appellant’s inability to work, but
they both also associated his disability with his exposure to recent work activities.
Dr. Douthit, the second-opinion orthopedic surgeon, and Dr. Pock, the second-opinion
psychiatrist, did not address appellant’s disability beginning January 16, 2014. Their reports
have little bearing on whether appellant suffered a recurrence of disability causally related to the
July 13, 2006 work injury.
With respect to whether appellant has shown a change in the nature and extent of his
light-duty job requirements, he pointed to changes in the language on the offers of limited duty.
For example, he noted the addition of data entry duties in November 2013, which did not appear
on the June 2013 offer. The employing establishment explained, however, that appellant’s duties
did not change; the offer simply better reflected what he had already been doing. More to the
point, the evidence contemporary to his January 16, 2014 work stoppage did not support that he
could no longer continue his limited-duty assignment because of data entry duties.
Appellant instead told his health care providers that he had frequently been pushing and
pulling heavy drawers at work. This represented no change. Appellant’s duties always included
pushing and pulling “as tolerated.” He was asked to look for a particular document, but this
again represented no change in his duties, because filing was already a part of his duties.
Further, the hearing representative found that appellant’s description of the physical
requirements of searching for the document was inconsistent with the statement provided by the
employing establishment, and therefore his account of events lacked credibility.
The Board finds that appellant has not met his burden to establish that he sustained a
recurrence of disability beginning January 16, 2014 causally related to his July 13, 2006 work
injury. Appellant has failed to show a change in the nature and extent of his injury-related
condition or a change in the nature and extent of his light-duty job requirements. Accordingly,
the Board will affirm OWCP’s September 17, 2014 decision.
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.
The information appellant has submitted to the Board relating to billing charges and
collection matters has no bearing on his appeal. His arguments fail to address the issue raised by
his claims for wage-loss compensation, namely, whether he could no longer continue his limitedduty assignment beginning January 16, 2014 because of the injury he sustained on July 13, 2006.
The primary issue is whether the accepted medical conditions he sustained on July 13, 2006
spontaneously changed or whether the employing establishment truly changed his modified
assignment such that it was no longer medically suitable. On this issue, appellant has not met his
burden of proof. In addition, he has not shown that the hearing representative was biased or
issued a decision that was not supported by the evidence of record. Indeed, based on its own
review of the evidence, the Board affirms the decision of the hearing representative denying
appellant’s recurrence claim.

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CONCLUSION
The Board finds that appellant has not met his burden to establish a recurrence of
disability beginning January 16, 2014 causally related to his July 13, 2006 work injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
I.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1198
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a February 1,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated December 20, 2019, to the

1

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s decision. An appeal is considered filed upon receipt by the Clerk of the
Appellate Boards. See 20 C.F.R. § 501.3(e)–(f). One hundred and eighty days from February 1, 2021, the date of
OWCP’s last decision, was July 31, 2021. As this fell on a Saturday, appellant had until the close of the next business
day, Monday, August 2, 2021 to file the appeal. 20 C.F.R. § 501.3(f)(2. The appeal was received on Monday,
August 2, 2021, rendering it timely.

filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 1, 2019 appellant, then a 60-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2019 she injured her legs, hips,
back, and shoulders when she slipped and fell on a greasy and wet floor while carrying metal trays
while in the performance of duty. 4 She did not stop work.
Appellant underwent diagnostic testing. An April 3, 2019 left shoulder x-ray scan revealed
mild degenerative changes at the acromioclavicular (AC) joint. A right shoulder x-ray scan was
unremarkable. A cervical spine computerized tomography (CT) scan revealed moderate right
foraminal stenosis at C3-4 and multiple degenerative grade 1 subluxations in the cervical and upper
thoracic spine.
In an April 5, 2019 report, Dr. Robert Reppy, an osteopath specializing in family medicine,
recounted that on February 26, 2019 appellant slipped on a concrete floor and fell on her head,
neck, shoulders, low back, and knees at work. He noted appellant’s complaints of neck and
bilateral knee pain. Dr. Reppy discussed appellant’s diagnostic test results, provided examination
findings, and diagnosed aggravation of existing low back pain, degenerative disc disease at C5-6
and C6-7, foraminal stenosis at C3-4, thoracic spine subluxation at multiple levels, and suspected
meniscus tear of the left knee. He also provided range of motion, comparative muscle report,
pinch/grip test, and lift strength evaluation reports dated April 8, 2019.
On April 4, 2019 appellant accepted a full-time, light-duty job offer.
An April 17, 2021 electromyography (EMG) and nerve conduction velocity (NCV) study
revealed abnormal findings of the upper extremities, which suggested the presence of left T1
radiculopathy.

3

5 U.S.C. § 8101 et seq.

4

OWCP assigned the claim OWCP File No. xxxxxx806. Appellant has two previously-accepted traumatic injury
claims. Under OWCP File No. xxxxxx662, OWCP accepted that appellant sustained a right hip contusion causally
related to a July 10, 2006 employment incident. Under OWCP File No. xxxxxx937, it accepted a closed fracture of
the upper and lower end of the left and right fibula condition as causally related to a June 18, 2017 employment
incident. Appellant also has a prior traumatic injury claim under OWCP File No. xxxxxx139 alleging left shoulder,
upper and lower back, left hip, and lower legs injuries due to a March 22, 2017 employment incident. OWCP denied
the claim, finding that the evidence of record was insufficient to establish that the March 22, 2017 incident occurred
as alleged. It has administratively combined OWCP File Nos. xxxxxx662, xxxxxx937, xxxxxx139, and xxxxxx806
with the latter claim as the master file.

2

In an April 25, 2019 report, Dr. Markus Kornberg, a Board-certified orthopedic surgeon,
indicated that he evaluated appellant for multiple symptoms related to a fall that she had at work
on February 26, 2019. On physical examination of the cervical spine, he reported tenderness of
the paracervicals and the trapezius and limited range of motion (ROM) testing. Examination of
appellant’s lumbar spine revealed tenderness of the paraspinal region at L5, tenderness of the
paraspinal region at L4 on the left, and limited ROM. Dr. Kornberg diagnosed low back pain and
lumbosacral spondylosis without myelopathy. He indicated that appellant had preexisting lumbar
issues and opined that she suffered an exacerbation of her preexisting condition. Dr. Kornberg
also diagnosed cervical spondylosis without myelopathy. He reported that appellant had
mechanical cervical neck pain with significant preexisting condition and opined that she suffered
“temporary exacerbation of recent traumatic insult.” Dr. Kornberg further diagnosed left knee
pain and explained that appellant suffered “traumatic insult to the left knee with resultant bruising.”
In a May 16, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised of the type of factual and medical evidence necessary to establish her claim and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
Appellant submitted additional reports by Dr. Reppy dated May 3 and June 7, 2019.
Dr. Reppy discussed appellant’s diagnostic test results and provided physical examination
findings. He diagnosed left knee chondromalacia, cervical stenosis, thoracic spine subluxation at
multiple levels, and aggravation of preexisting low back pain due to intervertebral discs.
Dr. Reppy completed a June 7, 2019 duty status form report (Form CA-17) indicating that
appellant could work full-time, modified-duty.
Appellant submitted an emergency room report dated April 3, 2019 by Dr. Elizabeth
Janevski, an emergency medicine physician, who recounted appellant’s complaints of severe neck
and upper back pain following a fall in late February. Dr. Janevski reported that physical
examination of appellant’s upper back demonstrated tenderness over the bilateral paraspinal region
of the upper back, shoulders, and lateral neck. Range of motion was limited due to pain.
Dr. Janevski indicated that a cervical spine CT scan showed degenerative narrowing, but no acute
pathology. She diagnosed muscle spasms of the neck and shoulder region.
By decision dated June 14, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the incident occurred as alleged. Thus,
it concluded that the requirements had not been met to establish an injury as defined by FECA.
On July 12, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
November 8, 2019. Appellant described her previous injuries to her neck, back, hips, and left
shoulder and prior workers’ compensation claims.
In a November 8, 2019 report, Dr. Reppy noted no changes in appellant’s cervical range of
motion. He diagnosed cervical stenosis, thoracic spine subluxation at multiple levels, left knee
chondromalacia, left shoulder degenerative joint disease at the AC joint, and displacement of
lumbar spine intervertebral discs.

3

By decision dated December 20, 2019, OWCP’s hearing representative modified the
June 14, 2019 decision to accept that the February 26, 2019 incident occurred as alleged and that
medical conditions were diagnosed. However, the claim remained denied as the medical evidence
of record was insufficient to establish causal relationship between the diagnosed conditions and
the accepted employment incident.
On December 20, 2020 appellant, through counsel, requested reconsideration. Counsel
argued that appellant’s claim should be accepted based on Dr. Reppy’s reports because he had
treated appellant for her other work-related injuries and had diagnosed aggravation of cervical and
lumbar spondylosis.
Appellant submitted the April 3, 2019 diagnostic examination reports of the lumbar spine
and bilateral shoulders, the April 17, 2019 EMG/NCV study, and Dr. Kornberg’s April 25, 2019
report and June 7, 2019 Form CA-17 report, which were previously reviewed.
Appellant also submitted radiograph reports dated February 28, 2019. A bilateral hip
radiograph showed mild femoracetabular joint space narrowing bilaterally and no acute displaced
fractures. A bilateral knee radiograph demonstrated very mild degenerative change. A lumbar
spine radiograph revealed mild degenerative changes at L5-S1.
OWCP received an April 3, 2019 work capacity evaluation form (Form OWCP-5c) from
Dr. Kornberg who noted a diagnosis of exacerbation of cervical and lumbar spondylosis.
Appellant also submitted a December 20, 2019 report by Dr. Reppy under OWCP File No.
xxxxxx937. Dr. Reppy indicated that he treated appellant for complaints of low back pain
radiating to the bilateral legs after she fell down last Sunday. He provided examination findings
and diagnosed status post right fibula fracture, bilateral tarsal tunnel syndrome, lumbar
degenerative disc disease, lumbar radiculopathy at L5 root and S1 root, and mononeuritis of the
right tibial. Appellant provided additional reports by Dr. Reppy dated January 24, 2020 through
February 5, 2021 regarding medical treatment for her lumbar and right lower extremity conditions.
By decision dated February 1, 2021, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument that: (1) shows that OWCP erroneously applied or interpreted a

5

5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued
February 23, 2010); W.C., 59 ECAB 372 (2008).

4

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, she did not advance a relevant legal argument not previously
considered by OWCP. As such, appellant is not entitled to review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3). 10
In support of her request for reconsideration, appellant submitted additional medical
evidence, including February 28, 2019 radiograph reports, Dr. Kornberg’s April 3, 2019 Form
OWCP-5c, and Dr. Reppy’s reports dated December 20, 2019 through February 5, 2021. While
this medical evidence is new, it is not relevant because it does not address the underlying issue of
the present case, i.e., whether appellant has established causal relationship between the accepted
February 26, 2019 employment incident and her diagnosed medical conditions. The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.11 Moreover, appellant also submitted April 3, 2019
diagnostic examination reports of the lumbar spine and bilateral shoulders, an April 17, 2019
6

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); see B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
10

Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued
September 1, 2020).
11

D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

EMG/NCV study report, and Dr. Kornberg’s April 25, 2019 report and June 7, 2019 CA-17 form
report, which were previously reviewed. The Board has held that the submission of evidence
which duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case. 12 Therefore, for the above reasons, appellant also failed to
satisfy the third requirement under 20 C.F.R. § 10.606(b)(3). 13
The Board thus finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

12

S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59
ECAB 141 (2007).
13

See D.J., Docket No. 21-0371 (issued November 24, 2021).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHWEST
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-703
Issued: June 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 5, 2013 appellant, through his attorney, filed a timely appeal from the
January 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a left knee injury causally related to an accepted
March 1, 2010 employment incident.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a December 5, 2011 decision, the
Board affirmed a March 25, 2011 OWCP decision, finding that appellant did not sustain an
injury in the performance of duty on March 1, 2010. The Board found that he failed to submit
sufficiently rationalized medical evidence to establish a causal relationship between his claimed
injury and the accepted March 1, 2010 employment incident. The facts of the case as set forth in
the Board’s prior decision are incorporated by reference.3
By letter dated August 3, 2012, appellant requested reconsideration before OWCP
regarding the denial of his claim and submitted additional evidence. In a March 22, 2012
medical report, Dr. Zaid W. Jabbar, a Board-certified internist, noted appellant’s complaint of
left knee pain. He obtained a history of the March 1, 2010 employment incident and listed
findings on physical examination. Dr. Jabbar diagnosed possible patellofemoral syndrome and a
tear of the posterior horn of the medial meniscus. In addressing causal relationship between the
history of injury and diagnoses, he noted that appellant was a mailman who walked in all
conditions on a daily basis. Dr. Jabbar opined that appellant’s slip and fall at work caused the
tear in his knee. He concluded that appellant was disabled from work.
In an August 11, 2012 report, Dr. David M. Burt, a Board-certified orthopedic surgeon,
advised that appellant sustained a left knee injury on March 1, 2010. He first treated appellant
on July 22, 2010. In an undated attending physician’s report (Form CA-20), Dr. Burt obtained a
history that on March 1, 2010 appellant fell down the stairs at work. He diagnosed a medial
meniscal tear. Dr. Burt indicated with a checkmark “yes” that the diagnosed condition was
caused or aggravated by appellant’s fall.
In a decision dated September 26, 2012, OWCP found that the medical evidence was
insufficient to establish a causal relationship between the diagnosed left knee condition and the
accepted March 1, 2010 employment incident.
By letter dated November 12, 2012, appellant, through his attorney, requested
reconsideration and submitted additional evidence. In reports dated July 22, 2010, Dr. Burt
noted appellant’s complaint of left knee pain. He reviewed a May 2010 magnetic resonance
imaging (MRI) scan which showed patellofemoral osteoarthritis and a medial meniscus tear.
Dr. Burt reported findings on physical examination of the left knee. He advised that appellant
had an acute medial meniscus tear. In an October 17, 2012 report, Dr. Burt reiterated his opinion
that appellant sustained a knee injury due to his March 2010 fall at work. He stated that
appellant had no symptoms or injury prior or subsequent to the date of injury. Dr. Burt advised
that his symptoms arose out of and as a direct result of the work injury. Appellant’s subsequent
2

Docket No. 11-1237 (issued December 5, 2011).

3

On August 12, 2010 appellant, then a 55-year-old city carrier, filed a traumatic injury claim alleging that on
March 1, 2010 he hurt his left knee when he fell down steps at work. On July 28, 2010 he underwent arthroscopic
left knee surgery. In an October 15, 2010 decision, OWCP denied appellant’s claim, finding that the March 1, 2010
incident occurred as alleged, but that the evidence failed to establish that the claimed medical condition was causally
related to the accepted work-related incident. In a March 25, 2011 decision, an OWCP hearing representative
affirmed the October 15, 2010 decision.

2

diagnosis of medial meniscus tear was consistent with this injury and his symptoms. Dr. Burt
concluded that appellant’s surgical treatment and all subsequent postoperative treatment related
to the torn meniscus were directly causally related to the March 2010 work injury. In a
September 7, 2010 Form CA-20, he provided identical information and findings as set forth in
his previously submitted undated Form CA-20. Dr. Burt indicated with a checkmark “yes” that
appellant’s medial meniscal tear was caused by the March 1, 2010 employment incident.
In an October 4, 2012 report, Dr. Jabbar provided a history of injury and his treatment of
appellant’s left knee condition commencing March 3, 2010. He stated that two days before
March 3, 2010, appellant sustained an injury when he fell while delivering mail at work.
Dr. Jabbar first treated him with anti-inflammatory medications and physical therapy for several
months. When appellant continued to have pain and swelling, Dr. Jabbar ordered an MRI scan.
Dr. Jabbar advised that the MRI scan showed a tear which probably occurred when appellant fell
in March 2010. This was most likely the reason why he was not improving with medications and
physical therapy. As a result, Dr. Jabbar referred him to Dr. Burt.
In a January 9, 2013 decision, OWCP denied modification of the September 26, 2012
decision. It found that appellant failed to submit rationalized medical evidence to establish a
causal relationship between the claimed injury and the accepted March 1, 2010 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing the fact of injury. 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.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9
4

5 U.S.C. §§ 8101-8193.

5

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

6

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

7

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

8

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

9

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

3

Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 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.11 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.12
ANALYSIS -- ISSUE
The Board previously found that the medical evidence of record was insufficient to
establish that appellant sustained a left knee injury causally related to the accepted March 1,
2010 employment incident. Appellant requested reconsideration before OWCP and submitted
additional medical evidence. The Board finds that the medical evidence submitted by him is
insufficient to establish that his left knee condition was caused or aggravated by the March 1,
2010 employment incident.
In a March 22, 2012 report, Dr. Jabbar provided a history of the March 1, 2010
employment incident and listed findings on physical examination of the left knee. He diagnosed
possible patellofemoral syndrome and a tear of the posterior horn of the medial meniscus.
Dr. Jabbar noted that as a mailman appellant walked in all conditions on a daily basis. He opined
that the March 1, 2010 employment incident caused the tear in his left knee. Dr. Jabbar’s
opinion on causal relation is of diminished probative value because he failed to provide adequate
medical rationale explaining how appellant’s fall caused his left knee condition.13 The Board
notes that his diagnosis of “possible” patellofemoral syndrome is speculative in nature.14
Similarly, Dr. Jabbar’s October 4, 2012 report which found that appellant’s tear in the left knee
“probably” occurred when he fell in March 2010 is speculative in nature.15 Again, he did not
provide adequate medical rationale explaining the nature of the relationship between appellant’s
left knee condition and the accepted employment incident. For the stated reasons, the Board
finds that Dr. Jabbar’s reports are insufficient to establish appellant’s claim.
Dr. Burt’s October 17, 2012 report found that appellant’s torn medial meniscus of the left
knee and resulting surgery were caused by the March 2010 employment incident. He explained
10

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

11

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

12

James Mack, 43 ECAB 321 (1991).

13

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994); see Thomas L. Hogan,
47 ECAB 323, 328-29 (1996).
14

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
15

Id.

4

that appellant had no symptoms or injury prior to the date of injury. The Board has held that
when a physician concludes that a condition is causally related to employment because the
employee was asymptomatic before the employment injury, the opinion is insufficient, without
supporting medical rationale, to establish causal relationship.16 Dr. Burt offered no rationale to
explain how the March 1, 2010 employment incident caused or aggravated appellant’s left knee
condition and resultant surgery. The Board finds that his opinion on causal relationship is not
sufficiently rationalized to establish appellant’s left knee injury claim. Dr. Burt’s undated and
September 7, 2010 Form CA-20 reports are also insufficiently rationalized to establish
appellant’s claim. By a checkmark “yes” he indicated that appellant’s medial meniscal tear was
caused by the March 1, 2010 employment incident. Dr. Burt did not explain, however, how the
diagnosed condition was causally related to the accepted employment incident. The Board has
held that an opinion consisting of a physician’s checkmark is of diminished probative value
without any explanation or rationale for the conclusion reached.17 The Board finds that
Dr. Burt’s form reports are insufficient to establish appellant’s claim. His other reports
addressed appellant’s left knee condition, but failed to provide an opinion on the causal
relationship between this condition and the accepted March 1, 2010 employment incident. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.18 These
reports, therefore, are also insufficient to meet appellant’s burden of proof.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left knee injury causally related to the accepted March 1,
2010 employment incident. He did not meet his burden of proof.
For reasons stated above, the Board finds that appellant did not submit sufficient
evidence establishing that he sustained an injury due to the accepted March 1, 2010 employment
incident.
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 failed to establish that he sustained a left knee injury
causally related to the accepted March 1, 2010 employment incident.

16

Michael S. Mina, 57 ECAB 379 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).

17

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

18

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

5

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6