United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 21-1086
Issued: January 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 12, 2021 appellant, through counsel, filed a timely appeal from a June 4, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right leg condition
causally related to the accepted September 27, 2017 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On October 4, 2017 appellant, then a 64-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 27, 2017 he pulled a muscle in his right leg when
lifting and pulling a pallet of mail while in the performance of duty. He stopped work on
September 28, 2017.
By decision dated December 1, 2017, OWCP accepted that the September 27, 2017
employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim,
finding that he had not submitted any evidence “containing a medical diagnosis in connection with
the injury and/or event(s).” Consequently, OWCP concluded that the requirements had not been
met to establish an injury as defined by FECA.
On December 22, 2017 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on April 26, 2018.
Appellant submitted a March 27, 2018 report by Dr. Russell H. Silver, a Board-certified
physiatrist, who noted appellant’s history of injury and referenced his findings from examination
on October 24, 2017 that revealed ecchymosis and pain in the right gastrocsoleus region and right
knee. He opined that appellant’s diagnosis of right muscle tear in the right calf was “a direct result
of the accident that occurred on September 27, 2017” and that he continued to be partially disabled.
By decision dated July 9, 2018, OWCP’s hearing representative modified the December 1,
2017 decision, finding that appellant had established a medical diagnosis in connection with the
September 27, 2017 accepted employment incident. However, the hearing representative affirmed
the December 1, 2017 decision as modified, finding that the medical evidence of record was
insufficiently rationalized to establish causal relationship between a diagnosed medical condition
and the accepted September 27, 2017 employment incident.
On March 15, 2019 appellant, through counsel, requested reconsideration of the July 9,
2018 decision.
By decision dated June 6, 2019, OWCP denied modification of the July 9, 2018 decision.
On June 24, 2019 appellant, through counsel, appealed to the Board. By decision dated
June 30, 2020, the Board affirmed the June 6, 2019 decision, finding that appellant had not met
3

Docket No. 19-1446 (issued June 30, 2020).

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his burden of proof to establish a right leg condition causally related to the accepted September 27,
2017 employment incident. 4
OWCP received additional evidence. Dr. Silver treated appellant on August 20, 2020 for
right knee, right leg, and right shoulder pain. Findings on examination revealed ecchymosis and
pain in the right gastrocsoleus area, limited range of motion of the right ankle and knee, and right
lower extremity weakness. Dr. Silver diagnosed lumbosacral radiculopathy, cervical spine
radiculopathy, bilateral carpal tunnel syndrome, bilateral tibial neuropathy, and right knee and
ankle pain. He recommended additional diagnostic testing and physical therapy.
On September 22, 2020 appellant requested reconsideration.
By decision dated December 15, 2020, OWCP denied modification of the June 6, 2019
decision.
OWCP received additional evidence. In a duty status report (Form CA-17) dated
January 17, 2020, Dr. Silver diagnosed neck and shoulder pain and advised that appellant could
not resume work. On February 25, 2021 he evaluated appellant for back pain radiating into the
bilateral lower extremity with numbness and tingling. Appellant’s history was significant for
traumatic injury at work. Findings on examination revealed limited range of motion of the right
knee, SI joint tenderness to palpation, right trochanter hip tenderness, bilateral paraspinal
tenderness of the cervical and lumbar spine, bilateral lower extremity strength deficits, and
numbness with tingling in the bilateral lower extremities. Dr. Silver diagnosed low back pain,
neck pain, bilateral hand/wrist pain, right hip pain, right knee pain, right shoulder pain, and right
hand pain. On March 4, 2021 he noted that appellant would remain off work for an additional
three weeks due to right shoulder pain and low back pain.
Appellant underwent a series of diagnostic tests. A November 7, 2020 x-ray of the cervical
spine revealed severe degenerative change at C5-7, moderate degenerative change at C3-4, and
mild degenerative change at C2-3 and C4-5. An x-ray of the lumbar spine dated November 11,
2020 revealed dextroscoliosis, L4-5 degenerative anterolisthesis, marked disc space narrowing,
associated degenerative change at L5-S2, and bullet fragments. A computerized tomography (CT)
scan of the lumbar spine dated November 17, 2020 revealed dextroscoliosis, L4-5 degenerative
anterolisthesis, marked disc space narrowing, associated degenerative change at L5-S1, and bullet
fragments. A magnetic resonance imaging (MRI) scan of the cervical spine dated November 23,
2020 revealed disc osteophyte complexes, uncovertebral spurring from C3-4 through C7-T1, mild
canal stenosis at C4-5 and C5-6, severe left-sided foraminal encroachment at C5-6, moderate leftsided foraminal narrowing at C3-4, and mild-to-moderate right-sided foraminal narrowing at C4-5.
In a November 27, 2020 report, Dr. Warren Lyons, a family practitioner, advised that
appellant would remain off work due to severe degenerative arthritis complicated by multiple
injuries to the neck, back, and shoulders.
OWCP received an unsigned attending physician’s report (Form CA-20).

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Id.

3

On March 11, 2021 appellant, through counsel, requested reconsideration.
By decision dated June 4, 2021, OWCP denied modification of the December 15, 2020
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA and that the claim was filed within the applicable time
limitation period of FECA, 5 that an injury was sustained while in the performance of duty as
alleged; and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury. 6 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.7
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components, which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred. 8 The second component is whether the employment
incident caused a personal injury.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, 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 claimant. 10 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that a disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.11

5

See R.B., Docket No. 18-1327 (issued December 31, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41
ECAB 153 (1989).
6

Y.K., Docket No. 18-0806 (issued December 19, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.E., Docket No. 17-0547 (issued November 13, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

9

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

10

H.B., Docket No. 18-0781 (issued September 5, 2018).

11

D.H., Docket No. 18-1410 (issued March 21, 2019).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right leg
condition causally related to the accepted September 27, 2017 employment incident.
On prior appeal the Board reviewed the evidence before OWCP at the time it issued its
June 6, 2019 decision and found that it was insufficient to establish that appellant sustained an
injury causally related to the accepted September 27 2017 employment incident. The Board’s
review of the previously submitted medical evidence of record is res judicata absent further review
by OWCP under section 8128 of FECA and, therefore, the prior evidence need not be addressed
again in this decision. 12
In an August 20, 2020 report, Dr. Silver treated appellant for right knee, right leg, and right
shoulder pain. He diagnosed lumbosacral radiculopathy, cervical spine radiculopathy, bilateral
carpal tunnel syndrome, bilateral tibial neuropathy, and right knee and ankle pain. In a CA -17
dated January 17, 2020, Dr. Silver diagnosed neck and shoulder pain and advised that appellant
could not work. Similarly, on February 25, 2021 he treated appellant for back pain radiating into
the bilateral lower extremity. Dr. Silver diagnosed low back pain, neck pain, bilateral hand/wrist
pain, right hip pain, right knee pain, right shoulder pain, and righ t hand pain. Likewise, on
March 4, 2021 he noted that appellant would remain out of work for an additional three weeks due
to right shoulder pain and low back pain. On November 27, 2020 Dr. Lyons also advised that
appellant would remain out of work due to severe degenerative arthritis complicated by multiple
injuries to the neck, back, and shoulders. However, in these reports, Dr. Silver and Dr. Lyons did
not provide an opinion regarding whether a diagnosed medical condition was causally related to
the accepted September 27, 2017 employment incident. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship. 13 Therefore, these reports are of no probative
value regarding appellant’s claim for a September 27, 2017 traumatic injury and they are
insufficient to establish his claim.
Appellant submitted diagnostic tests including a November 7, 2020 x-ray of the cervical
spine, an x-ray of the lumbar spine dated November 11, 2020, a CT scan of the lumbar spine dated
November 17, 2020, and an MRI scan of the cervical spine dated November 23, 2020. The Board
has held, however, that reports of diagnostic tests, standing alone, lack probative value as they do
not provide an opinion on causal relationship between an employment incident and a diagnosed
condition.14
OWCP received an unsigned attending physician’s report (Form CA-20). There is no
evidence that the document is from a physician. The Board has held that reports that are unsigned

12

S.C., Docket No. 19-0920 (issued September 25, 2019); W.C., Docket No. 18-1386 (issued January 22, 2019);
see also G.W., Docket No. 19-1281 (issued December 4, 2019).
13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

See J.M., Docket No. 17-1688 (issued December 13, 2018).

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or bear an illegible signature lack proper identification and cannot be considered probative medical
evidence as the author cannot be identified as a physician. 15
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his right leg condition and the accepted September 27, 2017 employment
incident, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury to his right knee causally
related to the accepted September 27, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
15

See M.T., Docket No. 21-0783 (issued December 27, 2021); Merton J. Sills, 39 ECAB 572, 575 (1988); see also
Bradford L. Sullivan, 33 ECAB 1568(1982) (where the Board held that a medical report may not be considered as
probative medical evidence if there is no indication that the person completing the report qualifies as a “physician” as
defined in FECA).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 13-163
Issued: March 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 31, 2012 appellant filed a timely appeal of a September 28, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP), denying his application for
reconsideration without merit review of the claim. Since more than 180 days elapsed from the
last merit decision on January 9, 2012 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 11, 2011 appellant, then a 43-year-old painter, filed a traumatic injury claim
alleging a back injury on July 29, 2011 in the performance of duty. On the claim form, he
indicated that he was in the bathroom and as he pushed his trousers to the floor he felt severe
back pain. By letter dated August 17, 2011, OWCP requested additional factual and medical
evidence. Appellant submitted an August 3, 2011 statement describing the July 29, 2011
incident. In an August 17, 2011 report, Dr. Jason Potocki, a Board-certified orthopedic surgeon,
noted that appellant reported back pain at work while getting ready to use the bathroom. He
provided results on examination and noted that thoracic and lumbar spine x-rays were essentially
normal.
By decision dated September 21, 2011, OWCP denied the claim for compensation. It
found an incident occurred as alleged, but the medical evidence was insufficient to establish
causal relation.
Appellant requested reconsideration. He submitted a September 27, 2011 report from
Dr. Potocki who reported that appellant had a thoracic magnetic resonance imaging (MRI) scan
but he was unable to review the images.
By decision dated January 9, 2012, OWCP reviewed the case on its merits and denied
modification. It found the medical evidence was insufficient to establish the claim.
In a letter dated September 18, 2012, appellant requested reconsideration. The evidence
submitted with the request included the August 3, 2011 factual statement as to the July 29, 2011
incident. In a February 7, 2011 statement, appellant described a January 25, 2011 incident in
which he was operating a forklift and was struck by a motor vehicle. In a report dated
September 23, 2011, Dr. Shane Kudela, a radiologist, reported that a thoracic MRI scan showed
mild posterior disc protrusions at T4-5 and T7-8. Appellant also submitted a November 28, 2011
report from Dr. Mark Wolgin, a Board-certified orthopedic surgeon, who stated that appellant
had undergone an anterior cervical discectomy and fusion approximately eight months earlier.
Dr. Wolgin noted that appellant continued to complain of left leg weakness, neck and shoulder
pain. In a report dated September 5, 2012, he provided a history that appellant was involved in a
forklift injury at work on January 25, 2011. Dr. Wolgin noted that appellant underwent C5-6
surgery on March 21, 2011. He provided results on examination and reviewed x-rays. In a form
report dated September 5, 2012, Dr. Wolgin noted a forklift injury on January 25, 2011 and
indicated that the diagnosed condition of thoracic disc herniation was causally related to the
incident.
By decision dated September 28, 2012, OWCP determined the application for
reconsideration was insufficient to further warrant merit review of the claim.

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LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”3 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
Appellant, through his attorney, requested reconsideration by letter dated
September 18, 2012. He did not show that OWCP erroneously applied or interpreted a specific
point of law or advance a relevant legal argument not previously considered by OWCP.
The claim for compensation was denied on the grounds that the medical evidence was
insufficient to establish that appellant sustained a back injury on July 29, 2011 as alleged.
OWCP accepted that an incident occurred in a bathroom on July 29, 2011 when he felt back
pain. Appellant did not submit new and relevant medical evidence as to establish whether he
sustained injury causally related to the July 29, 2011 incident. The medical evidence submitted
on reconsideration is not relevant to the claim for compensation in this case. The MRI scan
report does not discuss the July 29, 2011 bathroom incident. Appellant submitted evidence from
Dr. Wolgin that referred to a January 25, 2011 forklift incident and a diagnosis of thoracic disc
herniations. Dr. Wolgin did not address the July 29, 2011 bathroom incident or otherwise
provide any new and relevant evidence as to this claim. A claim for injury on January 25, 2011
is not before the Board on this appeal.
The Board finds appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(2) for reopening the case for merit review. Appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by OWCP, or submit relevant and pertinent evidence not previously
considered by OWCP. The Board accordingly finds that OWCP properly declined to reopen the
case for merit review of the claim for compensation.

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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CONCLUSION
The Board finds that OWCP properly determined that the application for reconsideration
was insufficient to warrant merit review of the claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2012 is affirmed.
Issued: March 12, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Amarillo, TX, Employer
_________________________________________

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

Docket No. 14-1898
Issued: February 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 26, 2014 appellant filed a timely appeal from a July 28, 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a low back injury in the performance of duty.
FACTUAL HISTORY
On April 16, 2014 appellant, then a 32-year-old nursing assistant, filed a traumatic injury,
alleging that on April 10, 2014 at 1:30 a.m., a nurse asked her to assist in lifting a nonresponsive
resident from the floor. She indicated that she assisted with lifting the resident’s legs while the
other coworkers lifted the upper body and she felt her back “tweak.” Appellant’s supervisor,
1

5 U.S.C. §§ 8101-8193.

Angela Bowlin, noted on the Form CA-1, that appellant provided conflicting statements about
how her back injury occurred. She indicated that appellant reported to John F. Blakley, a
manager, that she hurt her back while moving furniture and subsequently indicated that she was
injured while lifting a nonresponsive resident.
Appellant submitted emergency department trauma records dated April 14, 2014 in which
she reported a mechanism of injury that she “was pulling furniture + felt a pop in her back.” In a
history and physical report, she complained of back pain which began on Thursday and reported
it was a recent injury that involved lifting, turning, and bending while at work. In an emergency
department record dated April 14, 2014, Dr. Peter Craig, a Board-certified emergency room
physician, diagnosed back pain, lumbar disc degeneration, and sciatica. In a return to work note
dated April 14, 2014, he noted that appellant could return to work on April 22, 2014 without
restrictions. In emergency room disposition summary, a nurse practitioner noted that appellant
was treated for back pain and reported a history of injury that she “was pulling furniture and felt
a pop in her back.” The nurse diagnosed lumbar disc degeneration and sciatica. In employing
establishment health records dated April 15, 2014, a nonidentified health care provider noted that
appellant reported that she and two other staff members were assisting a fallen resident and
appellant was moving the resident’s legs when she felt a “tweak in her back.” Appellant
reported having to change her scrubs because they were blood stained. She did not seek medical
care at that time but went home and took Ibuprophen. Appellant indicated that she reported to
work the next shift and was prepping a body of a deceased patient and did not feel well due to a
sore back. She indicated that she was off over the weekend and while vacuuming she had so
much pain that she “collapsed to knees” and was unable to get up. Appellant reported being
taken by ambulance to the emergency room and a magnetic resonance imaging (MRI) scan
revealed a herniated disc at L4-5.
Appellant was treated by Dr. Philip J. Lavallee, a Board-certified physiatrist, on April 21,
2014 for a low back injury. In an April 21, 2014 attending physicians report, Dr. Lavallee noted
that appellant reported on April 10, 2014 that she was called to a resident’s room to assist in
lifting a patient weighing 200 pounds and while she was lifting the patient’s feet and two other
coworkers were lifting the arms, she felt a tweak in her back. He diagnosed mid to lower back
sprain/strain with central herniated disc at L4-5. Dr. Lavallee noted with a checkmark “yes” that
appellant’s condition was caused or aggravated by an employment activity. In an alternate work
assignment form dated April 21, 2014, he noted that appellant could return to work with
restrictions. On May 7, 2014 Dr. Lavallee diagnosed status post lower back sprain/strain and
returned appellant to work full time without restrictions. An April 14, 2014 MRI scan of the
lumbar spine, revealed broad-based disc bulging at L4-5, no protrusion and no central canal or
foraminal stenosis.
In an e-mail dated April 15, 2014 to Ms. Bowlin, her supervisor, appellant indicated that
“I assisted Stephen and Connie with lifting ... off the floor. No sling was used; he was ice cold
and nonresponsive.”2 Appellant indicated that she informed Sue Clayton that she hurt her back
and her scrubs were soiled with blood. In an April 14, 2014 e-mail, Mr. Blakley noted being
contacted by appellant at 6:00 p.m. requesting to take sick leave due to hurting her back while
moving furniture. He indicated that at 8:30 p.m. she contacted him and indicated that she hurt
her back at work the previous Thursday while lifting a patient and reported her injury to
2

From the context of the evidence, it appears that the reference to “Connie” is to Connie Monroe.

2

Ms. Clayton and Steve Lee. Mr. Blakley reported contacting Mr. Lee who was unaware of
appellant’s injury.
In an April 16, 2014 e-mail, Ms. Clayton noted that the previous Friday at 6:00 a.m.
appellant requested to change into scrubs after getting blood on her clothes while in the patient’s
room. She noted inconsistencies in appellant’s story as the patient passed away at 11:30 p.m. the
previous evening. In an April 17, 2014 e-mail, Mr. Lee noted that on the evening of April 10,
2014, appellant did not verbalize that she had a back injury or pain. He noted that appellant got
blood on her scrubs and requested new clothing but did not complain of an injury. In an
April 18, 2014 e-mail, Stephen G. Sill, appellant’s coworker, noted that on April 10, 2014 at
approximately 1:00 a.m. he entered a resident’s room to administer medication and discovered
the resident lying on the floor. He requested assistance from appellant and Ms. Monroe to lift
the resident onto the bed. Mr. Sill and Ms. Monroe got under each of the residents arms while
appellant held his legs and lifted him onto the bed. Mr. Sill noted that appellant reported getting
blood on her scrubs from an open scab on the resident’s knee and he instructed her to speak to
the house supervisor to obtain new scrubs. In an April 18, 2014 e-mail from Ms. Bowlin to
Jennifer J. Smith, human resources specialist, she noted that appellant did not verbalize that she
experienced a back injury on the night of April 10, 2014. Ms. Bowlin indicated that appellant
requested new scrubs because they were stained with blood, but she never reported an injury.
In a memorandum dated April 21, 2014, the employing establishment disputed
appellant’s claim because the employing establishment believed the injury was unrelated to her
job. Ms. Smith referenced medical notes from April 14, 2014 which did not support a workrelated injury. In a report of contact, Ms. Bowlin noted that on April 16, 2014 at 7:46 p.m.
appellant texted her noting that she hurt her back lifting a resident. She attended a staff meeting
at 10:00 p.m. and noted speaking to Mr. Blakley who received two calls from appellant regarding
her back injury. Mr. Blakley indicated that appellant contacted him at 6:00 p.m. requesting sick
leave because she hurt her back moving furniture. He noted that appellant called him back at
8:30 p.m. requesting sick leave and indicated that she hurt her back at work while lifting a
patient and informed Ms. Clayton and Mr. Lee of her injury. Ms. Bowlin contacted Mr. Lee and
Ms. Clayton and both were unaware of appellant’s back injury. On April 16, 2014 she received
an e-mail from appellant who noted Ms. Clayton was too overwhelmed to report her injury.
Appellant indicated that she, Mr. Sill, and Ms. Monroe lifted a resident who was nonresponsive
off the floor without using a lift.
In letters of contravention dated May 9 and 23, 2014, the employing establishment
controverted the claim because appellant provided conflicting scenarios as to how her injury
occurred. Additionally, it indicated that the April 14, 2014 emergency department trauma record
reported that the injury occurred after appellant was pulling furniture. In a statement dated
April 17, 2014, Mr. Lee noted that appellant did not report a back injury on April 10, 2014;
rather she reported getting blood on her scrubs. Similarly, an April 18, 2014 statement from
Mr. Sill, an eyewitness, indicated that appellant did not mention a back injury; rather she
indicated that she got blood on her scrubs while lifting a resident. Additionally, Mr. Blakley
indicated that on April 14, 2014 appellant reported injuring her back while moving furniture and
then later that evening she reported injuring her back while lifting a resident. The employing
establishment further noted that she continued to work on April 10, 2014 and was off three days
before returning back to work on April 14, 2014.

3

Appellant submitted a May 11, 2014 report of emergency treatment in which
Dr. Lavallee noted with a checkmark that the injury or illness was work related and appellant
was able to return to work on May 12, 2014. In an emergency room progress note dated May 11,
2014, Dr. Anuradha Gopalachar, a Board-certified emergency room physician, treated appellant
for low back pain. Appellant reported that on April 10, 2014 she was lifting a patient in the
nursing home and had low back pain. She sought treatment from the emergency room and an
MRI scan revealed a herniated disc. Dr. Gopalachar noted that appellant had an underlying
health problem before this event. He diagnosed left lumbar strain and took appellant off work.
By letter dated June 18, 2014, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim and requested that she submit such evidence.
In a June 28, 2014 statement, appellant indicated that on April 10, 2014 she worked from
7:30 p.m. to 8:00 a.m. She indicated that around 1:00 a.m. she was assisting Mr. Sill with a
nonresponsive resident. Appellant reported being instructed to lift both of the resident’s legs
while the other employees lifted the upper half of the body. She noted that upon lifting the
resident she felt pain in her lower back. Appellant noted the resident was bleeding on his leg
which soiled her scrubs. She noted reporting her injury to Ms. Clayton who informed her that
she was overwhelmed but would call “Steve” to obtain new scrubs and inform him of her injury.
Appellant indicated that two and a half hours later she received new scrubs and was given Motrin
and a heating pad. She noted her supervisor, Ms. Clayton, told her that she “reported
everything” so appellant went home and rested. Appellant subsequently reported experiencing
pain when vacuuming her home and she could not move. She allegedly called her job and
informed management of her condition but learned that Ms. Clayton failed to document the work
incident. Appellant indicated that human resources instructed her to prepare a Form CA-1 since
Ms. Clayton did not follow policy.
In a July 18, 2014 letter of contravention, Ms. Smith advised that appellant resigned on
June 3, 2014. She noted the employing establishment controverted appellant’s claim because
appellant reported inconsistent stories as to how the traumatic injury occurred.
In a decision dated July 28, 2014, OWCP denied appellant’s claim on the basis that the
evidence did not support that the injury or events occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury.”3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

4

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 In some traumatic injury cases this
component can be established by an employee’s uncontroverted statement on the Form CA-1.6
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and her subsequent course of
action.7 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor, and on the notice of injury can also be evidence of the occurrence of the incident.8
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.9 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative valued and will stand unless refuted by strong or persuasive evidence,10 an employee
has not met this burden when there are inconsistencies in the evidence such as to cast serious
doubt upon the validity of the claim.11
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence. To establish a causal relationship
between the condition, as well as any attendant disability, claimed and the employment event or
incident, the employee must submit rationalized medical opinion evidence, based on a complete
factual and medical background, supporting such a causal relationship.12
ANALYSIS
Appellant filed a claim on April 16, 2014 alleging that on April 10, 2014 she assisted
coworkers with lifting a nonresponsive resident from the floor. She reported assisting coworkers
with lifting the resident’s legs while others lifted the upper body and she felt her back “tweak.”
However, the Board notes that there are inconsistencies in the evidence which cast serious doubt

5

Supra note 3.

6

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

7

Rex A. Lenk, 35 ECAB 253, 255 (1983).

8

Id. at 255-56.

9

Dorothy M. Kelsey, 32 ECAB 998 (1981).

10

Robert A. Gregory, 40 ECAB 478 (1989).

11

Joseph A. Fournier, 35 ECAB 1175 (1984).

12

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

5

upon the validity of the claim. The Board finds that the claimed employment incident did not
occur as alleged.
Appellant submitted differing statements regarding to how her low back injury occurred.
She initially stated on the CA-1 form signed on April 16, 2014, that on April 10, 2014 at 1:30
a.m. she assisted coworkers with lifting a nonresponsive resident, and while she lifted his legs
the other coworkers lifted the upper body and she felt her back “tweak.” On April 14, 2014
Mr. Blakley, a manager, noted that appellant contacted him at 6:00 p.m. requesting to take sick
leave because she hurt her back while moving furniture. He indicated that subsequently at 8:30
p.m. appellant contacted him and indicated that she hurt her back at work the previous Thursday
while lifting a patient. Similarly, on April 17, 2014 Mr. Lee noted that on the evening of
April 10, 2014, appellant did not verbalize that she had a back injury at work. He noted that
appellant got blood on her scrubs and requested a new pair, but did not complain of an injury or
discomfort. On April 18, 2014 Mr. Sill, a witness, noted that on April 10, 2014 at approximately
1:00 a.m. he entered a resident’s room to administer medication and discovered the resident lying
on the floor. He requested assistance from appellant and Ms. Monroe in lifting the resident and
he and Ms. Monroe lifted the residents arms while appellant held his legs and lifted him onto the
bed. Mr. Sill indicated that appellant did not report an injury, rather, she noted getting blood on
her scrubs from the resident. Similarly, on April 16, 2014 Ms. Clayton noted that the previous
Friday appellant requested to change into scrubs after getting blood on her clothes while in a
resident’s room. In a report of contact, Ms. Bowlin noted that on April 16, 2014 at 7:46 p.m.
appellant texted her noting that she hurt her back lifting a resident. She attended a staff meeting
at 10:00 p.m. and noted speaking to Mr. Blakley who indicated receiving two calls from
appellant, at 6:00 p.m. appellant advised that she needed sick leave because she hurt her back
moving furniture and then subsequently at 8:30 p.m. she reported hurting her back while lifting a
patient. Ms. Bowlin contacted Mr. Lee and Ms. Clayton, and both were unaware of appellant’s
back injury but noted that she got blood on her scrubs.
Similarly, the medical evidence also offers a varying history of injury. In emergency
department trauma records dated April 14, 2014, appellant reported a mechanism of injury that
she “was pulling furniture + felt a pop in her back.” In a history and physical report of April 14,
2014, she complained of back pain which began on Thursday and reported it was a recent injury
that involved lifting, turning, and bending while at work. In an emergency room disposition
summary of April 14, 2014, a nurse practitioner noted that appellant was treated for back pain
and reported a history of injury that she “was pulling furniture and felt a pop in her back.” In an
April 21, 2014 employee health record note, Dr. Lavallee noted treating appellant for a low back
injury which she reported occurred on April 10, 2014 when she was helping to lift a resident.
Under these circumstances, the lack of confirmation of the claimed incident and inconsistencies
about the manner of how appellant was injured cast serious doubt upon the validity of the claim.
Additionally, there were no contemporaneous statements from persons present at the
employing establishment supporting that the incident occurred as alleged. Rather, Mr. Sill, who
was present when the alleged back injury occurred, indicated that appellant did not report that
she injured her back while lifting a patient; rather, she only noted getting blood on her scrubs.
While an injury does not have to be confirmed by eyewitnesses in order to establish that an
employee sustained an injury in the performance of duty, the employee’s statement must be
consistent with the surrounding facts and circumstances and her subsequent course of action.
These notes do not relate a consistent history of injury. Appellant also has not provided an
explanation for these inconsistent accounts of how the claimed injury occurred.
6

For these reasons, the Board finds that appellant has not established that the claimed
incident occurred as alleged. As appellant has not established that the April 10, 2014 incident
occurred as alleged, it is not necessary for the Board to consider the medical evidence regarding
causal relationship.13 Consequently, she has not met her burden of proof in establishing her
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a low back injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2015
Washington, DC

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

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

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

13

See S.P., 59 ECAB 184 (2007).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Houston, TX, Employer
__________________________________________

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Appearances:
Caesar Parker, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2065
Issued: August 4, 2010

Case Submitted on the Record

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

JURISDICTION
On August 10, 2009 appellant filed a timely appeal from a May 12, 2009 merit decision
of the Office of Workers’ Compensation Programs terminating her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective November 23, 2008.
FACTUAL HISTORY
On August 21, 2006 appellant, then a 52-year-old information receptionist, sustained
injury following exposure to gasoline fumes which came through the air vents at work.1 The
1

The record reflects appellant was placed in a modified clerk position as a receptionist answering the telephone
due to an accepted right wrist condition under file number xxxxx295. That claim is not before the Board on the
present appeal.

Office accepted the claim for chronic allergic conjunctivitis, allergic rhinitis, toxic effect of other
hydrocarbon gas, epistaxis and stomatitis. Appellant continued to work with restrictions on
talking. She stopped work on December 18, 2006 and received wage-loss compensation.
Dr. Maritza I. Homs, a Board-certified otolaryngologist, treated appellant for chronic
hoarseness, spasms and cough following her work-related exposure. She recommended total
disability to allow appellant’s vocal cords to rest. Appellant came under the care of
Dr. Michael L. Eisemann, a Board-certified otolaryngologist. On May 10, 2007 Dr. Eisemann
noted that examination of the nose and throat was unremarkable and no vocal cord lesions were
noted on indirect mirror examination. A fiberoptic laryngoscopy revealed no evidence of a mass
lesion. Dr. Eisemann recommended a return to work with restrictions on talking up to two hours
a day. He advised that appellant might have some spastic swelling in the throat and
recommended she be seen by a speech pathologist.2
The Office determined a second opinion examination was necessary and referred
appellant, together with a statement of accepted facts, a list of questions and the medical record,
to Dr. Larry Conrad, a Board-certified otolaryngologist. In a July 17, 2007 report, Dr. Conrad
noted appellant’s work-related history and treatment, presented findings on examination, which
were essentially normal and diagnosed dysphonia. He found no objective findings of a speech or
vocal condition. Dr. Conrad noted that the fiber optic laryngoscopy he performed as well as a
prior procedure performed on May 10, 2007 by Dr. Eisemann were normal. He recommended
continued speech therapy. Dr. Conrad advised that appellant was capable of returning to her
position preferable to a position requiring less talking. He estimated that she would achieve full
recovery by September 1, 2007.
On July 27, 2007 the Office sent Dr. Conrad’s report to Dr. Eisemann for review. In a
July 27, 2007 note, Dr. Eisemann stated that appellant had spastic dysphonia and required
extended voice rest. A June 20, 2007 computerized tomography (CT) scan of the neck revealed
no significant abnormality to account for dysphonia identified. A June 20, 2007 brain CT scan
was reported as normal.
The Office found a conflict in medical opinion between Dr. Eisemann and Dr. Conrad. I
referred appellant to Dr. Marc T. Taylor, a Board-certified otolaryngologist, for an impartial
medical evaluation. In a September 20, 2007 report, Dr. Taylor reviewed the history of the
injury and appellant’s treatment and noted findings on examination. The only objective findings
of a speech condition were appellant’s audible hoarseness and coughing during the examination.
Dr. Taylor was unable to visualize appellant’s vocal cords, but stated the prior multiple
evaluations of the vocal cords documented in the record were normal. He found no evidence of
chronic allergic conjunctivitis, allergic rhinitis, epistaxis or stomatitis. Dr. Taylor stated that
there was no objective physical abnormality in the upper or lower airway consistent with any
permanent effect from the exposure to hydrocarbon gas. He found no objective medical
evidence in the record or on examination of any work-related disease process or underlying
medical condition in the head and neck regions to establish that her hoarseness and coughing
2

Appellant did not return to work. She claimed the modified clerk light-duty assignment offered was not in
compliance with work limitations for her accepted right wrist condition.

2

were related to the August 21, 2006 incident. Dr. Taylor opined that any temporary
inflammation from inhaling exhaust or smoke from gasoline combustion would have resolved
completely within 5 to 10 days. Based on the medical record, the effects of appellant’s work
exposure ceased by February 16, 2007, the day she had a normal ENT examination and normal
video stroboscopic assessment of the vocal cords. Dr. Taylor concluded that there were no
objective abnormalities or medical conditions as a result of the August 21, 2006 event. He
noted, however, that, due to hoarseness, coughing and time away from work, it was unlikely
appellant would return to her duties. In a September 20, 2007 work capacity evaluation form,
Dr. Taylor found that appellant was capable of work since February 15, 2007 but was unable to
perform her regular job. Appellant could work eight hours a day with restrictions. The Office
subsequently requested clarification about her restrictions. In an October 4, 2007 report,
Dr. Taylor stated there was no medical reason for appellant not returning to work. The
examination was normal and there was no medical reason or ongoing work-related condition
which prevented her from returning to work.
On October 29, 2007 the Office proposed to terminate appellant’s compensation benefits
based on Dr. Taylor’s reports.
Appellant submitted copies of work capacity evaluation forms from Dr. Homs and
Dr. Eisemann, voice therapy sessions, and a February 6, 2007 sinus CT, which was reported as
being normal with a right deviation of the septum.
In an August 27, 2007 report, Dr. Charles Richard Stasney, a Board-certified
otolaryngologist noted the history of injury. He advised the video stroboscopic laryngeal
examination revealed anterior-posterior compression and subglottic edema and hyperemia.
Dr. Stasney opined that appellant probably had a muscle tension disorder rather than adductor
spasmodic dysphonia.
In a December 7, 2007 decision, the Office terminated appellant’s compensation benefits
effective December 23, 2007. It gave weight to Dr. Taylor’s impartial medical opinion.
On December 27, 2007 appellant requested an oral hearing. In a December 17, 2007
Form CA-20, Dr. Eisemann noted with a check mark “yes” that her spastic dysphonia was
caused or aggravated by her employment. He advised that appellant could return to suitable
regular work.
In a May 21, 2008 decision, an Office hearing representative set aside the December 7,
2007 decision finding that the Office did not consider Dr. Stasney’s August 27, 2007 report
before terminating benefits. The hearing representative remanded the case to the Office to obtain
a supplemental report from Dr. Taylor to address whether Dr. Stasney’s laryngeal examination
demonstrated any current findings/diagnoses due to the August 21, 2006 exposure.
In a July 10, 2008 report, Dr. Taylor reviewed the medical record and advised that
Dr. Stasney’s report did not change his previous opinion. He noted that Dr. Stasney’s impression
was probably muscle tension disorder rather than adductor spasmodic dysphonia. Dr. Taylor
reiterated that appellant did not have spastic dysphonia and noted that muscle tension was not a
disorder resulting from an event such as that described on August 21, 2006. The edema and

3

hyperemia Dr. Stasney described on examination was the result of abnormal muscle tension that
could be from multiple etiologies, including voluntary or involuntary tensing of the muscles.
Dr. Taylor found that Dr. Stasney’s examination was not specific for any type of toxic chemical
exposure or disease process and represented clinical findings found in multiple situations. The
fact that there was some subglottic edema and hyperemia present was not indicative of any
residual or ongoing work-related disease. Dr. Taylor stated that the multiple previous normal
examinations and Dr. Stasney’s diagnosis of a muscle tension disorder, demonstrated that there
was no work-related disease or pathology. He advised that appellant had no condition directly or
indirectly related to the August 21, 2006 work injury. Dr. Taylor found no evidence of a muscle
tension disorder developing as a result of the August 21, 2006 work incident and noted that the
medical literature did not support or demonstrate a muscle tension disorder developing from this
type of reported event. He concluded that there was no objective evidence of any medical
abnormality, pathology, or ongoing work-related disease process that would preclude appellant
from returning to her usual job.
A May 22, 2007 prescription note and December 17, 2007 billing note from
Dr. Eisemann diagnosed spastic dysphonia and referred appellant to speech therapy. Copies of
progress notes and October and November 2007 letters from Nesreen H. Alawami, a speech
language pathologist, were received.
On October 3, 2008 the Office proposed to terminate appellant’s compensation benefits
finding that the weight of the medical evidence rested with Dr. Taylor’s impartial medical
opinions. Appellant was accorded 30 days within which to provide additional evidence or
argument. No additional evidence was received.
In a November 3, 2008 decision, the Office terminated appellant’s compensation benefits
effective November 23, 2008 based on the report of Dr. Taylor.
On November 10, 2008 appellant requested a hearing that was held on March 19, 2009.
She submitted several statements discussing her case and copies of previously submitted
evidence. In a November 20, 2007 report, Dr. Stasney noted the video stroboscopic examination
revealed adequate vocal fold closure during singing but incomplete vocal fold closure along the
entire length of the vibrating margin when speaking. He recommended continued treatment.
By decision dated May 12, 2009, an Office hearing representative affirmed the
November 3, 2008 termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.3 After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.4

3

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

4

J.M., 58 ECAB 419 (2007).

4

The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
ANALYSIS
The Office accepted that appellant sustained chronic allergic conjunctivitis, allergic
rhinitis, toxic effect of other hydrocarbon gas, epistaxis and stomatitis as a result of exposure to
gasoline fumes at work on August 21, 2006. It found a conflict in the medical opinion between
Dr. Eisemann, her attending physician, and Dr. Conrad, the Office’s second opinion physician,
regarding the extent of appellant’s continuing employment-related residuals and disability.
Dr. Eisemann opined that appellant had continuing employment-related residuals and was unable
to perform her regular duties while Dr. Conrad concluded that appellant no longer had any
objective findings of any residual injury from the work incident. The Board notes that the Office
properly found a conflict in medical opinion and referred appellant to Dr. Taylor to resolve the
conflict.7
In a September 20, 2007 report, Dr. Taylor provided a complete medical and factual
history as well as detailed examination findings. He found no evidence of chronic allergic
conjunctivitis, allergic rhinitis, epistaxis, or stomatitis or any objective evidence in the upper or
lower airway consistent with any permanent effect of the exposure to hydrocarbon gas.
Dr. Taylor advised that appellant’s hoarseness and coughing were not related to any continued
work-related diseases process or underlying medical condition related to the August 21, 2006
work exposure. Any temporary inflammation from the August 21, 2006 incident resolved within
5 to 10 days and the effects of the work-related exposure ceased by February 16, 2007, when
appellant had a normal ENT examination and normal video stroboscopic assessment of the vocal
cords. Although it was unlikely that appellant would return to work due to hoarseness and
coughing, he noted that these symptoms were not due to the work injury. In a supplemental
October 4, 2007 report, Dr. Taylor reiterated that there was no medical reason for appellant not
to return to work.8 He again stated that her medical examination was normal and there was no
medical evidence of any ongoing work-related condition which prevented appellant from
returning to work.

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

Gloria J. Godfrey, 52 ECAB 486 (2001).

7

The Act, at 5 U.S.C. § 8123(a) provides that, if there is a 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.
8

See Nancy Keenan, 56 ECAB 687 (2005). The Office has the responsibility to secure a supplemental report
from an impartial medical specialist for the purpose of correcting a defect in the original report.

5

On July 10, 2008 Dr. Taylor reviewed Dr. Stasney’s August 27, 2007 report and the
medical record. He stated that appellant did not have spastic dysphonia and noted that muscle
tension was not a disorder which results from the exposure to gas fumes on August 21, 2006.
Dr. Taylor stated that the edema and hyperemia Dr. Stasney described as due to abnormal muscle
tension could be from multiple etiologies, including voluntary or involuntary tensing of the
muscles. Dr. Stasney’s findings were not specific for any type of toxic chemical exposure or
disease process and represented these found in multiple clinical situations. The fact that there
was some subglottic edema and hyperemia present was not indicative of any residual or ongoing
work-related disease. He reiterated that appellant had no condition directly or indirectly related
to the August 21, 2006 work incident. Dr. Taylor found that there was no evidence of a muscle
tension disorder developing as a result of the August 21, 2006 work incident and that the medical
literature did not establish a muscle tension disorder developing from exposure to gas fumes. He
found no objective evidence on examination of any medical abnormality, pathology or ongoing
work-related disease process that would preclude appellant from returning to her usual job.
When a case is referred to an impartial medical specialist for the purpose of resolving a
conflict in medical opinion, the opinion of such specialist, if sufficiently well rationalized and
based on a proper background, must be given special weight.9 Dr. Taylor’s opinion is wellrationalized and based on proper factual and medical background. Thus, Dr. Taylor’s opinion
represents the weight of the medical evidence on the issue of whether appellant continues to have
any work-related condition or residuals of the August 21, 2006 work incident.
The Board finds that the reports from Dr. Stasney and Dr. Eisemann are insufficient to
overcome the weight accorded to Dr. Taylor or to create a new conflict in medical opinion. On
August 27, 2007 Dr. Stasney opined that appellant probably had muscle tension disorder. The
Board has held that medical opinions which are speculative or equivocal in character are of
diminished probative value.10 Dr. Stasney failed to provide a firm medical diagnosis or to
causally relate appellant’s condition to her employment or the August 21, 2006 work incident.
Dr. Stasney’s report of November 20, 2007 which recommended continued treatment is of
reduced probative value as he did not address causation.11 Dr. Eisemann advised that appellant
had spastic dysphonia, but failed to causally relate the condition to the accepted employment
incident. On December 17, 2007 Dr. Eisemann noted with a check mark “yes” that appellant’s
spastic dysphonia was caused or aggravated by her employment. The Board has held that
marking a form report question “yes” as to whether an injury was caused by the employment
activity is insufficient without further explanation or rationale to establish causation.12 The

9

Kathryn Haggerty, 45 ECAB 383 (1994).

10

Jimmie H. Duckett, 52 ECAB 332 (2001).

11

Medical opinion, which does not offer any opinion regarding the cause of an employee s condition, is of limited
probative value. See A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008); Michael E. Smith, 50
ECAB 313 (1999).
12

Anna C. Leanza, 48 ECAB 115 (1996).

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reports from speech pathologist Alawami are of no probative medical value as a speech
pathologist is not a physician as defined by section 8102(2) of the Act.13
On appeal, appellant contends that Dr. Taylor’s reports are deficient because he failed to
perform any medical tests or procedures to disprove any residual effects of appellant’s
August 21, 2006 work exposure; acknowledged that he was not able to visualize appellant’s
vocal cords and because she underwent additional test procedures on her vocal cords and larynx
after Dr. Taylor’s October 4, 2007 evaluation. As noted, Dr. Taylor was provided with the
medical evidence of record, which included an accurate statement of accepted facts and
Dr. Stasney’s August 27, 2007 report. The issue for resolution by Dr. Taylor was whether
appellant’s accepted conditions had resolved or whether there were residuals of the August 21,
2006 work exposure. Dr. Taylor’s opinion was based on his review of the medical record and
the findings on examination. Dr. Taylor reviewed the test procedures of record, noting they did
not support by any significant abnormality or any condition that could be attributed to the
accepted exposure to gas fumes. The other visualizations of appellant’s vocal cords had been
normal and the physician found no evidence of ongoing residuals of the accepted conditions.
Dr. Taylor’s well-rationalized opinion represents the special weight of the medical
evidence. It establishes that appellant no longer has residuals of the accepted conditions. The
Board finds that the Office met its burden of proof to terminate her compensation benefits as of
November 23, 2008.
CONCLUSION
The Board finds that the Office met its burden to terminate appellant’s compensation
benefits on the grounds that she had no residuals or disability related to her accepted
employment injury.

13

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 12, 2009 is affirmed.
Issued: August 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 17-1580
Issued: August 21, 2018

Case Submitted on the Record

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

JURISDICTION
On July 14, 2017 appellant filed a timely appeal from an April 13, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
since the last merit decision, dated January 15, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.2
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).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 18, 2004 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she initially became aware that she developed bilateral
foot conditions beginning June 1, 2004, and first realized that they were a result of her federal
employment duties of walking and mounting/dismounting mail delivery vehicles on
August 12, 2004.
By decision dated October 15, 2004, OWCP accepted the claim for bilateral plantar
fasciitis. On July 27, 2010 it expanded acceptance of the claim to include bilateral tarsal tunnel
syndrome.
Appellant underwent right foot surgery on December 5, 2008 and left foot surgery on
March 27, 2009. She did not work from December 5, 2008 through June 1, 2009 and received
wage-loss compensation on the supplemental rolls. Appellant returned to full-time light-duty
employment, but stopped work again on May 25, 2012 for a left foot surgery and a right foot
surgery on November 9, 2012. On May 22, 2013 she returned to part-time light duty.
Appellant continued seeking treatment with her attending physician and surgeon,
Dr. Domenic Signorelli, a physician of podiatric medicine. In a July 31, 2014 medical report,
Dr. Signorelli reported that appellant continued to suffer from residuals of her work-related injury.
On September 24, 2014 OWCP referred appellant, the case file, a series of questions, and
a statement of accepted facts (SOAF) to Dr. Aubrey A. Swartz, a Board-certified orthopedic
surgeon, for a second opinion evaluation. Dr. Swartz determined that appellant’s work-related
conditions had resolved with no remaining residuals and that she no longer required medical
treatment for the accepted work injuries. Specifically, he noted that she had an equal range of
motion of both ankles, which appeared functional and unremarkable, and that she did not limp and
could stand well on her toes. Additionally, Dr. Swartz noted that appellant complained of no
tenderness in the plantar surface of both feet, including heels. He found no evidence of bilateral
plantar fasciitis or bilateral tarsal tunnel syndrome, or residuals of either condition, and determined
that maximum medical improvement (MMI) was reached on September 24, 2014.
On October 21, 2014 OWCP notified appellant of a proposal to terminate her wage-loss
compensation and medical benefits based on Dr. Swartz’ report that she was not experiencing any
residuals or disability connected to the June 1, 2004 employment injury as her conditions had
ceased. It provided appellant 30 days to submit additional information.
In an October 30, 2014 medical report, Dr. Signorelli reported that he reviewed Dr. Swartz’
report and agreed with his assessment that appellant’s condition was permanent and stationary,
and currently no longer required active treatment. He noted that appellant should be afforded
functional biomechanical orthotics on a yearly basis to maintain the normal medial longitudinal
arch. With regard to the ankle joint, Dr. Signorelli agreed that she had reached MMI and had no
residuals from the sprain. He further agreed with Dr. Swartz that there was no nonindustrial
preexisting disability. Dr. Signorelli concluded that appellant could continue with modified work
as provided.

2

By decision dated April 1, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective March 2, 2015, finding that the medical evidence of record
established that she no longer had any residuals related to the accepted work-related medical
condition or continued disability as a result of the June 1, 2004 work injury. It noted that both
Dr. Swartz and Dr. Signorelli agreed that appellant’s accepted conditions of bilateral plantar
fasciitis and bilateral tarsal tunnel syndrome had resolved, that there were no residuals of either
condition, and that medical treatment was no longer necessary.
On December 4, 2015 appellant requested reconsideration of OWCP’s April 1, 2015
decision. In support of her claim, she submitted medical reports dated March 26 through
November 18, 2015.
In a March 26, 2015 report, Dr. Stephen C. Wan, a physician of podiatric medicine and
treating physician, reported that he was treating appellant who had been continually improving
since her surgical release of the plantar fascia on both feet by Dr. Signorelli. He further reported
that her neuritic symptoms had also improved to the point where they were essentially absent.
In an April 30, 2015 medical report, Dr. Wan reported that appellant showed continuing
improvement status postsurgical intervention by Dr. Signorelli. He noted that he agreed with both
Dr. Swartz’ and Dr. Signorelli’s impression that she had reached MMI regarding her feet and also
agreed with Dr. Signorelli’s impression that she would warrant and beneﬁt from continuous
mechanical control status post plantar fascia release via the use of functional foot orthotics.
In a June 11, 2015 medical report, Dr. Wan noted that appellant reported residual right
ankle symptoms proportionate to the amount of standing and walking and that she returned for
orthotic dispense and training. He noted that her gait demonstrated stability with no areas of
irritation voiced by appellant. Dr. Wan diagnosed plantar fasciitis and noted that appellant
continued to demonstrate over pronation on both feet and ankles. He reported that despite the
continuing improvement status postsurgical intervention by her previous surgeon Dr. Signorelli,
she still demonstrated residual fascial tenderness (grades 1 to 3 on the pain scale). With appellant’s
work duties/demands and her weight issue, Dr. Wan noted that it was consistent that she would
continue to experience over pronation on both feet and ankles, requiring the continued assistance
of foot orthotic treatment in order to address the soft tissue symptoms associated with over
pronation. He noted that the orthotic was intended for functional and mechanical control.
In a November 18, 2015 medical report, Dr. Hosea Brown III, Board-certified in internal
medicine and a treating physician, reported that he disagreed with OWCP’s decision to terminate
appellant’s benefits as she continued to work with restrictions due to residuals of the bilateral
plantar fibromatosis. He noted that she exhibited persistent tenderness along the plantar aspects
of both feet as well as calcaneal motion tenderness and significant trigger point tenderness located
at the insertion of the longitudinal arch of the calcaneus bilaterally. Furthermore, Dr. Brown
reported complaints of persistent pain and discomfort in appellant’s feet upon performing
prolonged ambulation or standing. He noted that Dr. Signorelli determined that she had reached
MMI from a podiatric standpoint, but that she should be provided the opportunity to continue her
medical benefits pertinent to this claim in order to obtain additional orthotic intervention and
therapy as indicated by her symptoms. Dr. Brown reported that Dr. Swartz was a Board-certified
orthopedic surgeon while Dr. Wan and Dr. Signorelli were both Board-certified podiatric

3

physicians who determined that appellant clearly had persistent symptomatology pertinent to her
accepted condition of bilateral plantar ﬁbromatosis. He concluded that her claim should remain
open so that she may receive continued medical care.
By decision dated January 15, 2016, OWCP denied modification of the April 1, 2015
decision terminating appellant’s wage-loss compensation and medical benefits. It noted that the
medical evidence submitted only revealed subjective complaints and the desire to keep the claim
open was based on possible future injury.
On March 25, 2016 appellant requested reconsideration of OWCP’s January 15, 2016
decision.
In a February 24, 2016 medical report, Dr. Brown disagreed with the January 15, 2016
OWCP decision and argued that appellant exhibited persistent findings on physical examination
which constituted objective evidence regarding her persistent symptomatology. He noted
specifically that she exhibited persistent tenderness along the plantar aspects of both feet as well
as calcaneal motion tenderness, both of which were objective findings indicative of bilateral
plantar fibromatosis. Dr. Brown indicated that the medical opinions of Dr. Wan and Dr. Signorelli
should be given greater weight than the opinion of Dr. Swartz as they were specialists in the
appropriate field in accordance with FECA guidelines. He further noted that Dr. Signorelli
indicated that although appellant had reached MMI, she would require future podiatric treatment
for acute exacerbations of pain and discomfort in her feet, a symptomology which was well known
to recur in the case of bilateral plantar fibromatosis.
In a March 31, 2016 medical report, Dr. Wan provided findings on physical examination
and diagnosed plantar fasciitis, both feet currently asymptomatic, and quiescent. He reported that
with the over pronation status, appellant would require annual examination to assess the
effectiveness of her foot orthotic. Appellant’s mechanical function would continue to need to be
controlled by custom functional foot orthotics in order to avoid exacerbation of symptoms. Fascial
tissues, despite surgical release, could reattach and produce fasciitis symptoms if mechanical stress
forces were not under proper functional control. Dr. Wan noted that appellant had reached MMI,
but would continue to require annual evaluation for the need for foot orthotics in order to control
her mechanical stress issues, which were at the root cause of her original initial presenting signs
and symptoms.
In an April 7, 2016 medical report, Dr. Wan disagreed with OWCP’s assessment and
interpretation of his reports in its January 15, 2016 decision. He noted that while his report
indicated a benign examination, his musculoskeletal examination findings revealed tenderness
which signified ongoing residuals and issues concerning appellant’s plantar fasciitis. Dr. Wan
further noted that while he agreed with Dr. Swartz’ and Dr. Signorelli’s impression that she had
reached MMI regarding her feet, he also agreed with Dr. Signorelli’s impression that she would
warrant and beneﬁt from continuous mechanical control status post plantar fascia release via the
use of functional foot orthotics. He argued that this indicated required ongoing care. Dr. Wan
further noted that while his June 11, 2015 report noted that appellant voiced no irritation in regard
to her gait, the report also noted that she demonstrated residual fascial tenderness, grades 1 to 3/10
on the Mankoski Pain Scale. He concluded that she required periodic orthotic care, most
preferably on an annual basis to maintain her MMI status and to keep her symptom free.

4

By decision dated May 20, 2016, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review. It noted that the medical evidence submitted was
cumulative and substantially similar to documentation previously considered and already
contained in the case file.
On June 20, 2016 appellant filed a schedule award claim (Form CA-7).
Appellant requested reconsideration of the May 20, 2016 OWCP decision on
July 15, 2016. She alleged that the medical documentation submitted in support of her schedule
award claim was new evidence which established that her claim should not have been terminated.
Appellant submitted an April 7, 2016 magnetic resonance imaging scan of the right and
left foot which revealed no gross acute abnormality. In an April 15, 2016 impairment rating,
Dr. Charles Xeller, a Board-certified orthopedic surgeon, reported that appellant had reached MMI
and calculated 16 percent permanent impairment of the right and left lower extremities. On
July 31, 2016, a district medical adviser reviewed the medical evidence and determined that she
sustained three percent permanent impairment to the right lower extremity and three percent
permanent impairment to the left lower extremity.
In an August 24, 2016 medical report, Dr. Brown reported that appellant’s benefits should
not have been terminated and he agreed with Dr. Wan’s April 7, 2016 narrative regarding her
condition. He noted that she continued to complain of significant pain and discomfort in both
ankles and feet while working eight hours daily. Dr. Brown reported objective findings of
diminished range of motion at both ankles with significant pain and discomfort upon range of
motion examination. He further noted persistent tenderness upon physical examination and
diagnosed bilateral plantar fibromatosis.
By decision dated November 7, 2016, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions, nor included relevant
and pertinent new evidence sufficient to warrant a merit review.3
In another decision dated November 7, 2016, OWCP granted appellant a schedule award
for three percent permanent impairment to the right lower extremity and three percent permanent
impairment to the left lower extremity.
On December 20, 2016 appellant requested reconsideration of OWCP’s November 7, 2016
decision which had denied reconsideration. In support of her claim she resubmitted Dr. Wan’s
April 7, 2016 medical report, as well as a new November 17, 2016 report.
In his November 17, 2016 report, Dr. Wan noted that appellant’s permanent impairment
and entitlement to a schedule award established the ongoing pathology of her condition. He further

OWCP noted that determination of a claim for all beneﬁts due to a ﬁnding of no residuals of the accepted
conditions does not bar a subsequent schedule award and the schedule award should be considered separately from
the termination of beneﬁts.
3

5

noted that her ongoing impairment needed to be addressed in terms of functional orthotics in order
to continue to control the function and mechanical stress placed on the foot and ankle areas.
By decision dated December 21, 2016, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions, nor included relevant
and pertinent new evidence sufficient to warrant a merit review of the January 15, 2016 decision.
On December 29, 2016 and January 13, 2017 appellant requested reconsideration of the
January 15, 2016 OWCP decision. In support of her claim, she resubmitted Dr. Wan’s medical
reports previously of record dated June 11, 2015, April 7, and November 17, 2016. Appellant also
submitted a January 5, 2017 report from Dr. Wan.
In his January 5, 2017 report, Dr. Wan claimed that there was a conflict in medical opinion
between Dr. Swartz, serving as the second opinion physician, and her treating physicians regarding
the necessity of future medical care. He reported that, in accordance with FECA procedures,
OWCP should refer appellant for a referee examination to resolve this conflict.
By decision dated April 13, 2017, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review of the January 15, 2016 decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.5
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).6
In her applications for reconsideration, appellant did not establish that OWCP erroneously
applied or interpreted a specific point of law. She also did not advance a new and relevant legal
argument not previously considered. Consequently, appellant is not entitled to further review of

4

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

5

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

6

D.L., Docket No. 16-0342 (issued July 26, 2016).

6

the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).
With her reconsideration requests, appellant resubmitted medical reports from Dr. Wan
dated June 11, 2015 and April 7 and November 17, 2016. Material which is duplicative of that
already contained in the case record does not constitute a basis for reopening a case.7 The only
new medical evidence received following the December 21, 2016 reconsideration denial was
Dr. Wan’s January 5, 2017 report requesting that the case be referred for a referee examination
due to a conflict in medical opinion as to whether appellant would require future medical care.
Dr. Wan had however offered opinions regarding future medical care in his previous reports, and
Dr. Brown had previously offered this opinion regarding a conflict of medical opinion in his
February 24, 2016 report. As this opinion is therefore repetitive of a prior opinion already in the
case record and previously reviewed by OWCP, it does not constitute a basis for reopening the
case for further merit review.8
The Board accordingly finds that appellant did not meet 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).

7

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

8

See D.P., Docket No. 17-0450 (issued June 20, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 21, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Bellmawr, NJ,
Employer
__________________________________________

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

Docket No. 07-695
Issued: June 18, 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 January 17, 2007 appellant, through his attorney, filed a timely appeal from a July 21,
2006 merit decision of a hearing representative of the Office of Workers’ Compensation
Programs affirming a finding that he did not establish a recurrence of disability. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
on or after December 30, 1998 causally related to his February 19, 1995 employment injury.
FACTUAL HISTORY
This case is before the Board for the third time. In the first appeal, the Board set aside an
August 12, 2002 decision finding that appellant had not sustained a recurrence of disability on or
after December 30, 1998.1 The Board determined that a conflict in medical opinion existed on
1

William A. Hazelton, Docket No. 03-406 (issued April 3, 2003).

the issue of whether his 1999 right knee condition was caused or aggravated by his February 19,
1995 employment injury. On appeal for the second time, the Board found that the opinion of
Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, selected to resolve the conflict in
medical opinion established that appellant’s March 5, 1999 right knee surgery was not related to
his February 19, 1995 accepted employment injury of right knee strain.2 The Board further
found, however, that Dr. Askin’s opinion was insufficient to resolve the conflict regarding
whether his recurrence of disability on or after December 30, 1998 was due to his February 19,
1995 employment injury. The Board determined that Dr. Askin failed to definitively address the
issue of the alleged December 30, 1998 recurrence of disability. The Board remanded the case
for the Office to obtain clarification from Dr. Askin. The findings of fact and conclusions of law
from the prior decisions are hereby incorporated by reference.
On remand, the Office requested that Dr. Askin address whether appellant sustained a
recurrence of disability on December 30, 1998 due to his February 19, 1995 employment injury.
In a report dated December 14, 2005, Dr. Askin noted that appellant underwent authorized
surgery on July 25, 1995 for internal derangement of the right knee and a repair of a torn lateral
meniscus. He found that the diagnosis from the July 25, 1995 surgery of internal derangement
more accurately reflected the employment-related condition than the accepted condition of right
knee strain. Appellant described improvement after the July 25, 1995 surgery followed by a
slow increase in right knee symptoms. Dr. Askin discussed his findings of restricted hip
movement on prior examination which he opined could cause extra stress on the knee. He stated,
“If the accepted injury was a right knee strain, the later worsening was not a recurrence of his
work injury. Again, a strain is a partial tear of a muscle and there is nothing described in these
records that corresponds to recurrence of such injury.” Dr. Askin further related:
“As noted above, [appellant] does have a physical reason why his right knee is
troubled due to limitation of hip motion as an intervening cause. Furthermore,
there was no surgical or even [magnetic resonance imaging study] (MRI) [scan]
finding that described anything medically related to either the knee stain
(accepted injury) or the surgical findings reported at the first surgery. There was
no effusion found suggests that the knee itself was not the site of [appellant’s]
difficulty. From a purely medical perspective the second surgery was a medically
irrelevant procedure, not only not related to the work injury but also apparently
not related to the source of his complaint either.
“The bottom line is that the allegation of disability beginning on December 30,
1998 was not related to the accepted February 19, 1995 work injury and the work
stoppage was not a result of a spontaneous return of the symptoms of the previous
injury without intervening cause.”
By decision dated January 6, 2006, the Office found that appellant did not establish that
he sustained a recurrence of disability on or after December 30, 1998 causally related to his
February 19, 1995 employment injury. The Office noted that appellant did not claim any dates

2

William A. Hazelton, Docket No. 05-349 (issued August 19, 2005).

2

of disability from employment until March 5, 1999, the date of his second surgery found to be
unrelated to his employment injury.
Appellant, through his attorney, requested an oral hearing. At the hearing, held on
May 26, 2006 counsel argued that Dr. Askin’s report was speculative in nature because there was
no indication that appellant had a hip problem in 1998 which caused his condition to worsen.
In a decision dated July 21, 2006, the Office hearing representative affirmed the
January 6, 2006 decision.
LEGAL PRECEDENT
A “recurrence of disability” means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.4 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.5
Section 8123(a) 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.6 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.7 When there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.8

3

20 C.F.R. § 10.5(x).

4

Carmen Gould, 50 ECAB 504 (1999).

5

Mary A. Ceglia, 55 ECAB 626 (2004).

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

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

3

ANALYSIS
The Office accepted that appellant sustained right knee strain due to a February 19, 1995
employment injury. He underwent arthroscopic surgery on July 25, 1995 and resumed his
regular employment on November 1, 1995. On February 11, 1999 appellant filed a notice of
recurrence of disability. He underwent a chondroplasty of an osteochondral lesion on
March 5, 1999.
By decision dated April 3, 2003, the Board determined that a conflict existed regarding
whether appellant’s right knee condition in 1999 was causally related to his accepted
employment injury.9 The Office referred appellant to Dr. Askin for resolution of the conflict. In
a decision dated August 19, 2005, the Board concluded that Dr. Askin’s opinion established that
the March 5, 1999 right knee surgery was unrelated to the accepted employment injury.10 The
Board found, however, that Dr. Askin did not adequately address the issue of whether appellant’s
disability for work on or after December 30, 1998 resulted from his February 19, 1995
employment injury. The Board remanded the case for the Office to seek clarification from
Dr. Askin regarding the cause of appellant’s disability on or after December 30, 1998.
Where there exist opposing medical reports and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11 In a report dated December 14, 2005, Dr. Askin characterized the accepted
employment injury as internal derangement of the right knee in accordance with the condition
diagnosed at the time of the July 25, 1995 authorized surgery. He discussed appellant’s
complaints of increased right knee discomfort over time. Dr. Askin noted that appellant had
reduced range of motion of the hip which could cause stress on the knee. He determined that the
second surgery on March 5, 1999 did not reveal anything related to either the accepted condition
of right knee strain or to the findings from the initial surgery. Dr. Askin also asserted that the
lack of effusion “suggests that the knee itself was not the site of [appellant’s] difficulty.” He
concluded that appellant did not sustain a recurrence of disability beginning December 30, 1998
due to his February 19, 1995 work injury.
The Board finds that the Office properly relied upon the opinion of Dr. Askin in finding
that appellant did not establish a recurrence of disability on or after December 30, 1998 due to
his February 19, 1995 employment injury. Dr. Askin based his opinion on a proper factual and
medical history and accurately summarized the medical evidence. He provided rationale for his
conclusion by explaining that the 1999 right knee surgery and the diagnostic studies did not
reveal a problem related to either the prior accepted condition or the 1995 authorized surgery.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative value
and convincing quality with respect to the conclusions reached. Thus, his opinion is entitled to

9

William A. Hazelton, Docket No. 03-206 (issued April 3, 2003).

10

William A. Hazelton, Docket No. 05-349 (issued August 19, 2005).

11

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

4

the special weight accorded an impartial medical examiner and establishes that appellant did not
sustain an employment-related recurrence of disability.12
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on or after December 30, 1998 due to his February 19, 1995 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2006 is affirmed.
Issued: June 18, 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

12

On appeal, appellant’s attorney submitted a brief and raised arguments relevant to the prior appeal.

5