United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cape May, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0771
Issued: August 26, 2016

Case Submitted on the Record

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

JURISDICTION
On February 19, 2015 appellant, through counsel, filed a timely appeal of a February 11,
2015 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an aggravation or
acceleration of his bilateral knee arthritis causally related to factors of his employment.
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.

On appeal counsel argues that appellant had submitted the necessary medical opinion
evidence to establish his claim and that OWCP erred in requiring additional medical evidence
establishing “how” the aggravation occurred. In the alternative, he argued that the medical
evidence was sufficient to require additional development by OWCP.
FACTUAL HISTORY
On June 9, 2014 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed severe bilateral degenerative joint disease in his
knees due to his employment duties of standing, excessive walking, pushing cages on steep
ramps, as well as entering and exiting his postal vehicle.
In a letter dated June 30, 2014, OWCP requested that appellant provide additional factual
and medical evidence in support of his claim. Appellant provided a narrative statement noting
that he had worked as a letter carrier since 1986. He noted that on January 2001 he felt pain in
his left knee at work and was diagnosed with a torn meniscus. Appellant underwent arthroscopic
surgery on his left knee on February 13, 2001.
Appellant described his duties of pushing cages of mail up and down concrete ramps for
22 years. He noted that his first route was a walkout route with many businesses. This route
required appellant to drop off relay bags in designated place and then walk his route refilling his
mail bag at the relay spots. Appellant walked six to seven hours a day carrying a satchel
weighing up to 35 pounds for the 10 years that he was assigned this route. His current route
required less walking. Appellant noted that he had two park and loops with the balance of the
route as dismounts, where he parked and exited and reentered his vehicle at each location. He
reported 3½ hours of mounted delivery, 1 part and loop, 2.25 hours of dismount delivery and a
100 unit assisted living facility. Appellant noted that he developed aches and pains in his legs
and knees. He underwent arthroscopic surgery on his right knee on January 10, 2014 due to a
torn meniscus. Appellant underwent bilateral knee replacement surgeries on June 9, 2014 due to
bilateral degenerative joint disease.
By decision dated August 25, 2014, OWCP denied appellant’s claim finding that he had
not submitted sufficient medical evidence to establish a diagnosed condition as a result of his
implicated employment duties.
Dr. David Anapolle, a Board-certified orthopedic surgeon, examined appellant on
November 6, 2013 due to right knee pain. He noted that the onset of appellant’s symptoms was
gradual and worsening. Dr. Anapolle reported that appellant had mild left knee symptoms at that
time. He diagnosed degenerative joint disease in both knees and injected appellant’s right knee.
On December 2, 2013 Dr. Anapolle noted that appellant had worsening bilateral knee pain with
severe difficulty with stairs. He noted that appellant’s occupation was a letter carrier.
Dr. Anapolle reviewed appellant’s knee x-rays and diagnosed moderate left and mild right knee
degenerative joint disease with medial cartilage space narrowing. On December 16, 2013 he
examined appellant and a December 5, 2013 magnetic resonance imaging (MRI) scan which
demonstrated a medial meniscal tear on the right with mild-to-moderate degenerative joint
disease. Dr. Anapolle performed a right knee arthroscopy on January 10, 2014.

2

Dr. Alvin Ong, a Board-certified orthopedic surgeon, examined appellant on March 25,
2014 due to bilateral knee pain and noted his position as a letter carrier. He diagnosed bilateral
knee degenerative joint disease end-stage with varus malalignment. Dr. Ong recommended
bilateral knee replacement surgery.
Dr. Robert F. Hahn, III, an osteopath, completed a report on June 12, 2014 and noted that
appellant had led an active lifestyle and had developed increasing pain in both knees diagnosed
as end-stage degenerative joint disease. Appellant underwent bilateral total knee replacements
on June 9, 2014. He was admitted for rehabilitation at the Bacharach Institute for Rehabilitation
following his surgery and remained there until June 19, 2014.
Counsel requested reconsideration on October 11, 2014 and submitted additional medical
records and reports. On September 24, 2014 Dr. Ronald N. Rosenfeld, a Board-certified
orthopedic surgeon and osteopath, reviewed appellant’s medical treatment and noted that he
developed worsening of pain, swelling and stiffness in both knees due to his physical activities in
the performance of his federal employment. He described appellant’s employment duties of
pushing cages of mail up and down concrete ramps, long periods of standing to case mail, long
periods of walking while carrying a 35-pound mailbag, and repetitively climbing in and out of
his mail truck. Dr. Rosenfeld noted appellant’s knee surgeries. He noted that by 2013 the
continuous standing, pushing carrying and walking at work caused appellant to have constant
pain and swelling in his knees. Dr. Rosenfeld reported appellant’s diagnosis of bilateral knee
arthritis as well as his bilateral knee replacement surgery on June 9, 2014. He reviewed
appellant’s medical records and stated, “Although it is unlikely that [appellant’s] occupational
activities were the primary cause of his bilateral knee arthritis, his work activities did aggravate
and accelerate this condition.” Dr. Rosenfeld noted that appellant’s 2001 left knee injury was
employment related and that medial meniscal tears were known to be an aggravating factor in the
progressive development of medial compartment arthritis. He further listed appellant’s
implicated employment duties from 1986 through 2013 and noted that these activities caused an
acceleration of the degenerative arthritis of his knees and led to the bilateral knee replacement
surgery. Dr. Rosenfeld stated, “[w]ork-related activities such as [those] performed by
[appellant], including knee bending -- especially while lifting or carrying, stair climbing,
kneeling, and squatting have all been implicated by multiple scientific studies as associated with
the development of knee arthritis.” He provided citations to six publications. Dr. Rosenfeld
concluded that appellant’s bilateral knee arthritis was aggravated and accelerated by his workrelated activities.
By decision dated February 11, 2015, OWCP modified its prior decision to find that
appellant had submitted sufficient medical evidence of a diagnosed condition, but continued to
deny appellant’s claim as the medical evidence of record was not sufficiently well reasoned to
establish a causal relationship between appellant’s diagnosed aggravation of his underlying
degenerative joint disease in both knees and his implicated employment duties. It stated, “The
medical evidence does not establish how your work duties aggravated and accelerated your
preexisting condition.” (Emphasis in the original.)

3

LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, noted
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof to establish an
aggravation or acceleration of his bilateral knee arthritis causally related to his employment
factors.
Appellant has submitted medical evidence of a diagnosed condition, degenerative joint
disease of his knees bilaterally. He further provided a detailed statement of the employment
duties that he felt caused or contributed to the aggravation and acceleration of his degenerative
joint disease. Appellant also submitted medical evidence addressing the causal relationship
between his diagnosed condition and his employment duties.
Drs. Anapolle, Ong, and Hahn provided medical reports which mentioned appellant’s
federal employment as a letter carrier or his active lifestyle, and provided a diagnosis of
degenerative joint disease of the knees bilaterally. However, these physicians did not offer a
clear opinion that appellant’s degenerative joint disease was caused, aggravated or accelerated by
his employment. For these reasons, these reports are not sufficient to establish appellant’s claim.
Dr. Rosenfeld’s September 24, 2014 report included a detailed listing of appellant’s
implicated employment duties, a statement of his medical history and treatment and an opinion
that appellant’s degenerative joint disease was aggravated and accelerated by his employment
duties. He did not, however, provide sufficient explanation of the medical reasoning behind his
opinion. Instead, Dr. Rosenfeld merely noted that work-related activities such as knee bending
while lifting or carrying, stair climbing, kneeling and squatting had been implicated by multiple
scientific studies as associated with the development of knee arthritis. He provided citations to
six publications. The Board finds that Dr. Rosenfeld’s opinion does not include the necessary
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

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medical rationale to establish appellant’s claim. Instead, he provided a conclusory opinion based
on medical publications. These publications are of general application and not determinative
regarding whether specific conditions are causally related to particular employment factors in a
claim.5 Dr. Rosenfeld did not provide any additional medical reasoning rendering the medical
publications specific to appellant’s claim.
On appeal counsel contends that appellant had submitted sufficient medical evidence to
meet his burden of proof, or in the alternative that the medical evidence was sufficient to require
further development of appellant’s claim, by OWCP. The Board has considered these
arguments, but disagrees with counsel’s conclusions for the reasons offered above.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish an
aggravation or acceleration of his bilateral knee arthritis, causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.6
Issued: August 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
5

See C.S., Docket No. 14-1994 (issued June 26, 2015); P.J., Docket No. 14-498 (issued May 19, 2014); and
Gaetan F. Valenza, 35 ECAB 763 (1984).
6

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
_________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-998
Issued: November 1, 2013

Case Submitted on the Record

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

JURISDICTION
On March 18, 2013 appellant, through his attorney, filed a timely appeal from the
March 13, 2013 Office of Workers’ Compensation Programs’ (OWCP) decision denying his
request for an increased schedule award. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this issue.
ISSUE
The issue is whether appellant met his burden of proof to establish more than a nine
percent permanent impairment of his left leg, for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a January 28, 2010 decision,2 the
Board set aside an October 22, 2008 schedule award decision.3 The Board found that the
medical report of the second opinion physician, Dr. Steven Valentino, a Board-certified
orthopedic surgeon, was insufficiently rationalized and failed to take into account appellant’s
preexisting arthritis in determining his left leg impairment. In a September 26, 2011 decision,
the Board found the case was not in posture for decision.4 The Board found that OWCP’s
medical adviser utilized the findings provided by Dr. Robert Smith, a Board-certified orthopedic
surgeon and OWCP referral physician, and based a left leg impairment on a three-millimeter
full-thickness cartilage defect although the medical adviser indicated that there were no specific
measurements of the thickness of the hyaline cartilage on any clinical examination. The Board
directed OWCP to further develop the medical evidence. In an October 2, 2012 decision,5 the
Board set aside OWCP’s February 21, 2012 decision, finding that OWCP did not follow the
Board’s previous instructions. OWCP was instructed to refer appellant for x-ray testing and
referral to an appropriate specialist to address the left knee arthritis and to issue an appropriate
schedule award decision. The facts and the history contained in the prior decisions are
incorporated by reference.
In an August 30, 2012 report, Dr. Richard Laib, a Board-certified diagnostic radiologist,
reviewed March 8, 2012 left knee x-rays and provided findings which included that appellant
had 1.0 centimeters in minimum joint space width, and the lateral compartment measured 0.7
centimeters. He noted that appellant had irregularity of the articular surface of the medial
femoral condyle and slight spurring at the intercondylar margin. Dr. Laib found moderate
degenerative changes involving the left knee and no significant narrowing of the medial or lateral
compartments.
By letter dated January 17, 2013, OWCP referred appellant for a second opinion, along
with a statement of accepted facts, a set of questions and the medical record to Dr. Zohar Stark, a
Board-certified orthopedic surgeon, who was asked to obtain a new x-ray of appellant’s left knee
and to comment on the findings.
In a January 31, 2013 report, Dr. Stark noted appellant’s history of injury and treatment.
On examination appellant walked with a limp avoiding his left lower extremity and was unable
to walk in calcaneus or in equinus gait due to left knee pain. Left knee examination revealed no
effusion and diffuse tenderness on palpation. There was some muscle atrophy in the quadriceps
as circumferences measured 51 centimeters on the left and 53 centimeters on the right. Range of
motion (ROM) of the left knee was from 0 to 95 degrees of flexion and there was crepitation at
the patellofemoral joint and over the medial compartment, with tenderness on palpation over the
2

Docket No. 09-290 (issued January 28, 2010).

3

The Board also reversed the October 22, 2008 decision that terminated appellant’s compensation benefits.

4

Docket No. 11-546 (issued September 26, 2011).

5

Docket No. 12-804 (issued October 2, 2012).

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joint lines. Dr. Stark indicated that the McMurray’s, Apley, and Lachman tests were negative;
apprehension test was positive; there are no signs of varus/valgus instability; and both knees
were in slight varus alignment. He obtained an x-ray study of both knees in standing position.
The study revealed degenerative joint changes in the left knee, medial compartment more than
lateral compartment, osteophyte formation over the medial aspect of the knee, degenerative
changes of the tibial spines, osteophyte formations at proximal and distal poles of the patella,
more on the left. Dr. Stark measured the cartilage in both knees and the study revealed eight
millimeters of cartilage in the right lateral compartment and six millimeters of cartilage in the
left lateral compartment. He also indicated that the study revealed eight millimeters of cartilage
in the right medial compartment and seven millimeters of cartilage in the left medial
compartment. Appellant had two millimeters of cartilage in the patellofemoral area bilaterally.
Dr. Stark referred to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (hereinafter, A.M.A., Guides). Under Table 16-3, Knee
Regional Grid, Lower Extremity impairments, appellant had class 1 arthritis of his left knee.
Dr. Stark explained that this was the category for primary knee joint arthritis, full-thickness
articular cartilage defect and determined that this corresponded to seven percent impairment.6
He referred to Table 16-6, Functional History Adjustment, Lower Extremities, and used a grade
modifier 2, for functional history secondary to gait derangement.7 Dr. Stark referred to Table 167, Physical Examination Adjustment, Lower Extremities, and selected a grade modifier 2 for a
finding of two centimeters for reduced circumference of the quadriceps on the left compared to
the right.8 He referred to Table 16-8, Clinical Studies Adjustment, Lower Extremities, and
utilized a grade modifier 1 for cartilage interval normal or less than 25 percent compared to
opposite uninjured side.9 Dr. Stark utilized the net adjustment formula to determine that
appellant had a net adjustment of two. This resulted in nine percent impairment of the left leg.
On March 4, 2013 OWCP referred Dr. Stark’s report to Dr. Arnold T. Berman, a Boardcertified orthopedic surgeon and medical adviser. In a March 11, 2013 report, Dr. Berman
applied the A.M.A., Guides to Dr. Stark’s examination findings and concurred with the rating of
nine percent impairment to the left leg. He determined that appellant reached maximum medical
improvement on January 31, 2013, the date of Dr. Stark’s examination.
By decision dated March 13, 2013, OWCP found that appellant had nine percent
impairment of the left leg. As appellant had already received schedule awards for eight percent
impairment, he was entitled to an additional schedule award for one percent left leg impairment.

6

A.M.A., Guides 516.

7

Id. at 511.

8

Id. at 517.

9

Id. at 519.

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LEGAL PRECEDENT
The schedule award provision of FECA10 and its implementing regulations11 sets forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss or loss of use, of scheduled members or functions of the body. However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. For decisions issued after May 1, 2009, the A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.12
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).13 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.15
ANALYSIS
OWCP referred appellant for a second opinion examination and evaluation by Dr. Stark,
who found that appellant had nine percent impairment of the left leg. Dr. Berman, a medical
adviser, concurred with Dr. Stark’s rating of nine percent impairment of the left lower extremity.
Dr. Stark and Dr. Berman utilized the Knee Regional Grid, Table 16-3, to identify a
class 1 default value, grade C, seven percent impairment based a three-millimeter cartilage
interval, full-thickness articular cartilage defect or un-united osteochondral fracture. The
physicians utilized the Functional History Adjustment Grid and grade modifiers, Table 16-6,
grade modifier 2 for gait derangement16; Table 16-7, Physical Examination Adjustment,17 grade
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

FECA Bulletin No. 09-03 (issued March 15, 2009). A.M.A., Guides (6th ed. 2008).

13

Id. at 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

14

Id. at 521.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
16

A.M.A., Guides 516.

17

Id. at 517.

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modifier 2 for a two-millimeter reduced circumference of quadriceps on the left compared to the
right; and Table 16-8, Clinical Studies Adjustment, grade modifier of 1, for a cartilage interval
normal or less than 25 percent loss compared to the opposite knee.18
After determining the impairment class and default grades, Dr. Stark and Dr. Berman
applied the grade modifiers in the net adjustment formula to calculate a net adjustment.19 The
final impairment grade is determined by adjusting the grade up or down from the default value C
by the calculated net adjustment. Regarding a functional history grade, they assigned a grade
modifier 2. Regarding a physical examination grade modifier, they assigned a grade modifier 2
based upon appellant’s reduced circumference of the quadriceps on the left compared to the
right.20 Applying the net adjustment formula resulted in a grade modifier of +2, which resulted
in a grade adjustment from C to E. The corresponding lower extremity impairment for a class 1,
grade C is nine percent.21 The Board finds that Dr. Stark and Dr. Berman properly applied the
A.M.A., Guides to rate impairment to appellant’s left leg. Their impairment rating represents the
weight of medical evidence. As appellant previously received schedule awards totaling eight
percent of the left knee region, he was entitled to an additional one percent. He has not
submitted evidence to support a greater impairment.
On appeal, appellant’s representative questioned the findings of Dr. Stark and why the
report of Dr. Laib, a Board-certified diagnostic radiologist, was not utilized. The Board notes
that Dr. Stark obtained a new x-ray and provided his findings on examination. As noted above,
his report comports with the A.M.A., Guides and rated nine percent impairment to the lower
extremity. The report from Dr. Laib is of limited probative value as it merely contained findings
on diagnostic testing and no opinion on impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than nine percent impairment of the left lower extremity.

18

Id. at 519.

19

Net Adjustment = (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Section 15.3d, A.M.A., Guides 411.

20

A.M.A., Guides 517.

21

Id. at 511.

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ORDER
IT IS HEREBY ORDERED THAT the March 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2013
Washington, DC

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

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

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

6


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

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

Docket No. 20-0050
Issued: March 4, 2021

Case Submitted on the Record

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

JURISDICTION
On October 7, 2019 appellant, through counsel, filed a timely appeal from an August 13,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the August 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability from
work for the period September 9, 2016 to February 3, 2017 causally related to his accepted
February 25, 2015 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 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 February 25, 2015 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, he injured his low back and knee when he slipped
when walking on snow while in the performance of duty. He stopped work on the date of injury.
OWCP accepted the claim for lumbar sprain/strain. It paid appellant wage-loss compensation on
the supplemental rolls as of April 12, 2015 and on the periodic rolls as of June 28, 2015. Appellant
returned to limited-duty work on July 19, 2016. However, during the period July 19 to 25, 2016
full-time work was not available within his restrictions. Effective August 12, 2016, appellant
accepted a written limited-duty job offer. He stopped work on September 9, 2016.
On November 18, 2016 appellant filed claims for compensation (Form CA-7) claiming
intermittent disability from work from July 9 through 22, July 23 through August 5, and
September 3 through 16, 2016.
In December 2016 appellant filed Form CA-7 claims for compensation for the periods
September 17 through 30, October 1 through 14, October 29 through November 11, November 12
through 25, November 26 through December 9, and December 10 through 23, 2016. On
January 10, 2017 appellant filed Form CA-7 claims for compensation for the periods October 15
through 28, 2016 and December 24, 2016 through January 6, 2017.
By development letter dated January 17, 2017, OWCP informed appellant that it had
received his claims for wage-loss compensation. It requested additional evidence to establish that
he was unable to work during the claimed periods due to his accepted February 25, 2015
employment injury.5 OWCP afforded appellant 30 days to submit the requested evidence.
On January 23, 2017 appellant filed a Form CA-7 claim for compensation for the period
January 7 through 20, 2017. On February 6, 2017 he filed a Form CA-7 claim for compensation
for the period January 21 through February 3, 2017. Appellant returned to work on
February 7, 2017.
By decision dated July 24, 2017, OWCP found that appellant was entitled to wage-loss
compensation for total disability from work from July 11 through 25, 2016. However, it denied
his claims for wage-loss compensation for the period September 9, 2016 through February 3, 2017,
4

Docket No. 18-0339 (issued January 24, 2019).

5

OWCP noted that a limited-duty assignment was available within his medical restrictions for the period of claimed
lost time and therefore he was to provide evidence to support why he did not work the light-/limited-duty assignment.

2

as the medical evidence of record was insufficient to establish that he was disabled from work
during the claimed period due to the accepted February 25, 2015 employment injury.6
Appellant appealed to the Board. By decision dated January 24, 2019, the Board affirmed
OWCP’s July 24, 2017 decision. The Board found that appellant had not met his burden of proof
to establish total disability for the period September 9, 2016 to February 3, 2017 causally related
to his accepted February 25, 2015 employment injury.7
OWCP continued to receive medical evidence. Dr. Kimberly Togliatti-Trickett, Boardcertified in physical medicine and rehabilitation, in reports dated August 17 and 24, 2017 and
May 24, 2019, noted that appellant was totally disabled from work from September 9, 2016 to
February 3, 2017 due to underlying low back, radicular, and left lower extremity pain. During this
period he was unable to bend, lift, and carry more than 10 pounds for more than one hour. In a
May 24, 2019 report, Dr. Togliatti-Trickett advised that appellant was instructed to remain off
work from September 9, 2016 through February 7, 2017 based on his physical limitation and his
inability to perform his job due to the February 25, 2015 employment injury.
On May 29, 2019 appellant, through counsel, requested reconsideration.
By decision dated August 13, 2019, OWCP denied modification. It found that the medical
evidence of record was insufficient to establish total disability from work for the period
September 9, 2016 to February 3, 2017 causally related to his accepted February 25, 2015
employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.9 The term disability is

6

On August 8, 2017 appellant filed a Form CA-2a claiming wage loss from work due to a change or worsening of
his accepted work-related conditions on July 29, 2017. By decision dated October 31, 2018, an OWCP hearing
representative affirmed the February 28, 2018 denial of the recurrence claim. This issue is not before the Board.
7

The Board also found that OWCP had properly determined that appellant received an overpayment of
compensation in the amount of $11,235.14 for the period July 26 through November 12, 2016. The Board found that
he was without fault in the creation of the overpayment for the period July 26 to August 20, 2016, but was at fault in
the creation of the overpayment for the period August 21 through November 12, 2016. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment for the period July 26 to August 20, 2016. The Board
notes that, to date, OWCP has not issued a de novo decision regarding waiver of recovery of the overpayment for the
period July 26 to August 20, 2016. As such, that issue is not presently before the Board.
8

Supra note 2.

9

C.R., Docket No. 18-1805 (issued May 10, 2019); S.J., Docket No. 17-0828 (issued December 20, 2017); G.T.,
Docket No. 07-1345 (issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB
1143 (1989).

3

defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury.10
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proven by a preponderance of the
reliable, probative, and substantial medical evidence.11 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work.12 When the
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she was unable to work, without objective findings of disability
being shown, the physician has not presented a medical opinion, supported by medical rationale,
on the issue of disability or a basis for payment of compensation.13
When an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that, light duty can be performed, the employee has the burden of proof to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.14 OWCP’s
procedures require that where recurrent disability from work is claimed within 90 days of the first
return to duty, the focus is on disability rather than causal relationship.15 The attending physician
should describe the duties which the employee cannot perform and the demonstrated objective
medical findings that form the basis for the renewed disability from work.16
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
from work for the period September 9, 2016 to February 3, 2017 causally related to his accepted
February 25, 2015 employment injury.

10

20 C.F.R. § 10.5(f); see S.M., Docket No. 19-0658 (issued March 17, 200); Cheryl L. Decavitch, 50 ECAB
397 (1999).
11

B.K., Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); William A.
Archer, 55 ECAB 674 (2004).
12

B.R., Docket No. 18-0339 (issued January 24, 2019); Dean E. Pierce, 40 ECAB 1249 (1989).

13

See B.R., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

14

C.G., Docket No. 16-1503 (issued May 17, 2017).

15

Id.

16

Id.

4

Preliminarily, the Board notes that findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA.17 It is therefore unnecessary
for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s
July 24, 2017 decision because the Board considered that evidence in its January 24, 2019
decision.18
The medical evidence of record submitted after OWCP’s July 24, 2017 decision consists
of reports from Dr. Togliatti-Trickett who opined in her August 17 and 24, 2017 reports that
appellant was totally disabled from work from September 9, 2016 to February 3, 2017 due to
underlying low back, radicular, and left lower extremity pain. She also noted appellant’s work
restrictions. In her May 24, 2019 report, Dr. Togliatti-Trickett noted that appellant was held off
work from September 9, 2016 through February 7, 2017 based on his physical limitations and his
inability to perform his job due to the February 25, 2015 employment injury. Although she opined
that appellant was totally disabled from work, her opinion was conclusory in nature and failed to
explain how the accepted back conditions were responsible for appellant’s claimed disability and
why he could not perform his limited-duty assignment during the period claimed.19 As previously
noted, if inability to work is claimed within 90 days after the initial return to work the focus is on
disability, rather than causal relationship. However, the treating physician must describe the duties
which the employee cannot perform and demonstrate objective medical findings that form the
basis for the renewed disability for work.20 As Dr. Togliatti-Trickett did not provide objective
medical findings that formed her opinion regarding appellant’s disability for work, her reports are
insufficient to establish that appellant was disabled during the period September 9, 2016 through
February 7, 2017 causally related to his accepted employment injury. The Board thus finds that
appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

17

See E.H., Docket No. 19-1569 (issued April 2, 2020); J T., Docket No. 18-1757 (issued April 19, 2019); S.S.,
Docket No. 17-1106 (issued June 5, 2018); H.G., Docket No. 16-1191 (issued November 25, 2016).
18

Supra note 4.

19

See S.K., Docket No. 18-1537 (issued June 20, 2019).

20

See K.D., Docket No. 19-0628 (issued November 5, 2019); A.B., Docket No. 18-0978 (issued September 6,
2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P., Docket No. 14-1150 (issued September 15, 2014);
J.F., 58 ECAB 124 (2006).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
from work for the period September 9, 2016 to February 3, 2017 causally related to his accepted
February 25, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.21
Issued: March 4, 2021
Washington, DC

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

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

21

Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cayey, Puerto Rico, Employer
__________________________________________

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Appearances:
Cheril G. Ocasio Gonzalez, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1515
Issued: February 22, 2018

Case Submitted on the Record

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

JURISDICTION
On July 3, 2016 appellant, through his representative, filed a timely appeal from a
June 10, 2016 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.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
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.

FACTUAL HISTORY
On November 3, 2015 appellant, then a 43-year-old sales/service distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that, on October 23, 2015, he sustained
stress causally related to factors of his federal employment. The claim specifically involved an
encounter with a customer, both at his home and at a store, who asked about packages that he
had not received.3
In a November 18, 2015 attending physician’s report (Form CA-20a), Dr. Frank EscobarRoger, a psychiatrist, advised that he evaluated appellant on November 6, 2015 after a customer
appeared at his home and at a store threatening him. He diagnosed recurrent major depressive
disorder and checked a box marked “yes” that the condition was caused or aggravated by
employment.
In a January 4, 2016 statement, G.D., appellant’s supervisor, related that he could neither
“concur nor disapprove the statements made by [appellant]” as he had not investigated the
matter. He advised that investigators with the Office of Inspector General (OIG) had
investigated the alleged incident. G.D. related, “According to [appellant] he has no relationship
with the alleged perpetrator [T.F.] but they do live relatively near to each other. The only
relationship they might have is professional in nature since [T.F.] picked up parcels from the
[employing establishment] frequently.” G.D. indicated that appellant was an “excellent
employee.”
Appellant, in an undated statement submitted with an OIG report, related that a few
weeks before October 23, 2015 unusual parcels began arriving for a particular mailbox. He
notified his supervisor, who decided to send the parcels to employing establishment inspectors.
The customer for that mailbox came to pick up his parcels and appellant’s supervisor told him
not to deliver the parcels, but instead tell him that the notice was for another mailbox. The
customer left without incident. On Friday, October 23, 2015, appellant was in his backyard with
his wife and children when two men came to his house. One man remained in the vehicle. The
other man asked if he had seen a lost dog and also asked about the motor vehicle tires. When
appellant left work on Saturday, October 24, 2015, he stopped at a market and again encountered
the man who had come to his house about the dog. The man told appellant that he had been
looking for him rather than for a dog because he was not giving him his parcels. Appellant
realized that he was the customer whose packages were being held for inspection. The man told
him to stay away from the situation because he had a family. Appellant could not sleep over the
weekend and told his wife about the matter, and she left with their children to go stay with her
mother for a week. He told his supervisor about the incident on Monday, October 26, 2015, and
the supervisor notified employing establishment inspectors.
An assistant special agent with the OIG’s office provided a case summary report dated
January 14, 2016. He related that on December 8, 2015 OIG agents interviewed appellant’s
supervisor, G.D., who related that on October 26, 2015 appellant informed him that on
October 23, 2015 he was outside having a cookout with his family when a man came to his home
3
The employing establishment indicated that it first received notice of the injury on December 5, 2015.
However, appellant’s supervisor signed the claim form on November 3, 2015.

2

purportedly looking for his dog. On Saturday, October 24, 2015, appellant saw the man again
and asked whether he had found his dog, and the man told him that he was not looking for a dog,
but instead for appellant because he wanted to receive his packages.
On December 9, 2015 the OIG interviewed S.H., a union steward. The OIG agent
related:
“[S.H.] stated that [appellant] informed him during the meeting with [G.D.] that
on Friday, October 23, 2015, a man came to his home while he was outside
having a family cookout activity and asked about a lost dog described as a black
Labrador. [S.H.] stated that [appellant] indicated [that] the individual who asked
about the dog was in a Lexus automobile and was accompanied by another
unidentified individual who stayed inside the vehicle. [S.H.] stated that
[appellant] informed him that on Saturday, October 24, 2015, [he] encountered
the subject once again at a local store close to his residence in [Puerto Rico] and
asked him if he had found the dog, to which the subject replied that he was not
looking for any dog, but that he was looking for him because he had parcels that
were supposed to be delivered to him and he had not received them.
“[S.H.] also stated that [appellant] told him that the subject told him to stay away
from his parcels because he was a family man and something was going to
happen. [He] also stated that [appellant] told the subject that if he was doing
something wrong through the [employing establishment] he would get caught.”
Appellant told S.H. that he was worried after the incident and sought treatment with the
Department of Veterans Affairs (DVA).
An OIG agent interviewed appellant on December 10, 2015. He advised that he had a
service-connected disability with DVA for post-traumatic stress disorder and a lumbar condition.
Appellant related that around two weeks before October 23, 2015, his work location began
receiving parcels with broken scan codes for a particular mailbox. A week before October 23,
2015, a customer came to his window to pick up one of the suspicious parcels. Appellant asked
his supervisor what to do, and the supervisor instructed him not to deliver the parcel, but instead
send it to the inspection service. The evening of October 23, 2015, the customer and another
individual came to his home while he was having a cookout. The individual remained in his
vehicle and the customer asked him about a lost dog. On October 24, 2015 appellant “stopped at
a small business/liquor store near his home after leaving work to get a drink and saw the subject
once again.” The subject informed him that he had been looking for him rather than his dog the
evening before, warned him to stop “messing with his parcels,” and told him to “stay away from
this because he was a family man and something was going to happen.” Appellant recognized
the man as the customer who owned the mailbox that was receiving suspicious parcels. On
December 14, 2015 he went to the police to file a complaint against the customer for the events
of October 24, 2015.
The OIG agent also interviewed appellant’s physician on December 21, 2015, who
advised that he had discussed the incident with the customer in an appointment. Dr. EscobarRoger indicated that appellant had not taken prescribed antidepressants.

3

In the investigative report, the OIG agent related that he spoke with police about
appellant’s complaint against the customer. The police advised that based on his version of
events, the incident “was not considered a threat, but instead it would be considered at most an
apparent attempt at intimidation and that [appellant] would need the name of the subject involved
in order to proceed and summon the subject.” He told the police that he did not know the name
of the customer.
The OIG agent maintained that appellant did not establish an injury in the performance of
duty as the alleged incident took place at a liquor store when appellant was off duty and
consuming alcohol as he was not “forthcoming” in his interview with the OIG regarding whether
he knew the customer. He noted that the statements from appellant and the customer were
contradictory regarding the events on October 23 and 24, 2015. The OIG agent additionally
noted that appellant’s physician indicated that he was not taking his medication as prescribed and
had other family problems that could aggravate his condition.
In a November 3, 2015 memorandum of interview accompanying the OIG report, an
employing establishment inspector indicated that he interviewed appellant on October 26, 2015
in connection with an alleged threat. Appellant told him about his encounters with the customer
when he tried to pick up a package on October 22 or 23, 2015 and when he encountered him on
October 23 and 24, 2015. He informed the inspector that both he and the customer lived in the
same neighborhood and indicated the residence of the customer on a map.
In response to OWCP’s request for additional information, on January 20, 2016 appellant
related that a couple of weeks before October 23, 2015 a customer began receiving suspicious
packages, one of which was sent for investigation. The investigators told the supervisor to hold
all of the packages for that mail box “because some drugs were going on.” The customer who
owned the mailbox came to pick up a package and saw appellant talking with his supervisor and
holding packages. The customer came to appellant’s house on October 23, 2015 and when he
and his wife came out asked about a lost dog, and also about his vehicle. On October 24, 2015
he saw the customer in a market near his house. The customer advised that he was looking for
appellant and that appellant should stay away because he “was a family guy and somebody will
get hurt.” Appellant notified his supervisor of the incident and filed a report. He advised that he
did not have a relationship with the customer outside of delivering his parcels. Appellant noted
that the employing establishment offered to relocate him, but they indicated that drug dealers
would find him wherever he went. He indicated that he also experienced stress due to his
mother’s dementia and from events that occurred when he was stationed overseas.
The employing establishment, on January 25, 2016, controverted the claim, asserting that
appellant had nonemployment-related emotional conditions for which he received compensation
from the DVA.
On April 29, 2016 OWCP requested that a knowledgeable supervisor review and
comment on the accuracy of appellant’s statements. In a May 14, 2016 response, G.D. related
that he did not concur with appellant’s receipt of continuation of pay. He noted that employing
establishment investigators found that the alleged incident occurred outside of work hours. The
investigators learned that appellant knew the name and address of the customer even though he
initially indicated that he did not know who had threatened him. G.D. also noted that appellant

4

was at a liquor store, not a fruit store when he encountered the customer, and that the inspectors
did not find any threats made after an investigation. The customer did not come back to claim
any more packages and the mailbox was closed as of December 2015. G.D. asserted that there
was no proof the customer threatened him, noting that the customer denied the allegation. He
indicated that appellant told several different versions of the alleged incident.
By decision dated June 10, 2016, OWCP treated appellant’s emotional condition claim as
one for an occupational disease and denied it, finding that he had not established that the
October 23 and 24, 2015 incidents occurred as alleged, as his statements conflicted and were not
supported by corroborating evidence. OWCP noted that the OIG found that appellant was off
duty and at a liquor store when the incident(s) allegedly occurred and that the accused
customer’s account varied from appellant’s version of the incident. Appellant also identified the
customer and where he lived on a map after saying that he had no personal knowledge of the
individual. OWCP additionally noted that the medical evidence of record did not establish a
diagnosed condition due to any alleged work incident.
On appeal, appellant’s contends that he is disabled from work due to his injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 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.6
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, but the employee’s statements must be
consistent with the surrounding facts and circumstances and his or her subsequent course of
action.7 An employee has not met his or her burden of proof in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.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 serious doubt on an employee’s
statements in determining whether a prima facie case has been established.9 An employee’s
4

5 U.S.C. § 8101 et seq.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

See Betty J. Smith, 54 ECAB 174 (2002).

8

Id.

9

Linda S. Christian, 46 ECAB 598 (1995).

5

statement regarding the occurrence of an employment incident is of great probative value and
will stand unless refuted by strong or persuasive evidence.10
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties, or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.11 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force, or his or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained occupational stress
after a customer came to his house on October 23, 2015 and threatened him again on
October 24, 2015. As he alleged events occurring over the course of more than one workday, his
claim is properly adjudicated as an occupational disease claim.15 OWCP denied the claim after
finding that appellant had not factually established the occurrence of the claimed work incidents.
The Board finds that the evidence of record does not contain inconsistencies sufficient to
cast serious doubt on appellant’s version of the events of October 23 and 24, 2015. He notified
10

Gregory J. Reser, 57 ECAB 277 (2005).

11

5 U.S.C. § 8101 et seq; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

12

Gregorio E. Conde, 52 ECAB 410 (2001).

13

Dennis J. Balogh, 52 ECAB 232 (2001).

14

Id.

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
15

6

his supervisor of his encounters with the customer on October 26, 2015, as verified by the
supervisor during an interview with an OIG agent. Appellant provided generally consistent
accounts of the incidents, relating that a customer visited his house on October 23, 2015
purportedly looking for a lost dog, and that on October 24, 2015 the customer informed appellant
that he was looking for him, not a dog and warned him to stay away from his packages or that
something would happen. Appellant sought medical treatment on November 6, 2015. The
employing establishment asserted that he did not inform investigators in a timely manner that he
knew the name and residence of the customer. However, an inspector with the employing
establishment advised that during an October 26, 2015 interview, appellant described his
encounters with the customer on October 23 and 24, 2015 and that he knew the name and
address of the customer. It further contended that the incident on October 24, 2015 may have
occurred at a liquor store and that the customer contradicted his version of events. However, the
fact that the customer in question disagreed with appellant’s account of the incident does not
render the claim factually deficient, nor does the type of store where the incident occurred.
Appellant’s course of action is consistent with his account of the facts of the case and there are
no discrepancies, inconsistencies, or contradictions in the evidence which cast serious doubt that
the events occurred as alleged.16 The Board finds that, under the facts of this case, appellant’s
allegations have not been refuted by strong or persuasive evidence.17
As noted, workers’ compensation law does not apply to each and every injury or illness
that is somehow related to an employee’s employment. There are situations where an injury or
an illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.18 When working conditions are alleged as
factors in causing a condition or disability, OWCP, as part of its adjudicatory function, must
make findings of fact regarding which working conditions are deemed compensable factors of
employment and are to be considered by a physician when providing an opinion on causal
relationship and which working conditions are not deemed factors of employment and may not
be considered.19
OWCP failed to make the necessary findings of fact regarding which, if any, of the
implicated employment factors constituted compensable factors of federal employment to be
considered by a physician when providing an opinion on causal relationship and which incidents
are not deemed factors of employment and may not be considered.20 The Board will remand the
case so that OWCP may properly exercise its adjudicatory function.21 After such further
development as it considers necessary, it shall issue a de novo decision.
16

See V.M., Docket No. 08-2304 (issued May 21, 2009).

17

See Leonard T. Munson, Docket No. 98-1478 (issued December 23, 1999) Margarita Bell, 48 ECAB
172 (1996).
18

See Norma L. Blank, 43 ECAB 384 (1992).

19

See Terri L. Peeples, Docket No. 93-2214 (issued September 5, 1995).

20

See T.P., Docket No. 13-0392 (issued November 4, 2013).

21

Id.

7

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: February 22, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 07-942
Issued: August 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated January 23, 2007, which found that her employmentrelated hearing loss was not ratable for schedule award purposes. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for his employment-related
hearing loss.
FACTUAL HISTORY
On September 20, 2006 appellant, then a 58-year-old aircraft overhaul supervisor, filed
an occupational disease claim, alleging that noise exposure during his federal employment
caused hearing loss. By letters dated September 25, 2006, the Office requested that the
employing establishment furnish information regarding appellant’s noise exposure and informed
him of the type of evidence needed to support his claim. Appellant submitted a response

describing his employment history and noise exposure. The employing establishment submitted
appellant’s job description, noise exposure information and health records including a number of
audiograms dating from November 18, 1969 to August 22, 2006.
By letter dated October 24, 2006, the Office referred appellant to Dr. Ernest E. Johnson, a
Board-certified otolaryngologist, for a second opinion evaluation to include an audiogram.
Dr. Johnson submitted a report dated November 27, 2006 describing his examination. He
diagnosed bilateral mild high frequency sensorineural hearing loss and intermittent tinnitus and
opined that the condition was due in part to employment-related noise exposure. Dr. Johnson
submitted calibration certification and results of audiometric testing performed by a certified
audiologist. The audiogram, performed on November 27, 2006, reflected testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed the
following: right ear 15, 15, 20 and 20 decibels; left ear 10, 15, 15 and 20 decibels, respectively.
Following referral by the Office, in a report dated January 15, 2007, an Office medical
consultant, Dr. David N. Schindler, a Board-certified otolaryngologist, advised that appellant’s
binaural hearing loss was aggravated by employment-related noise exposure and that it was not
ratable for schedule award purposes. In reaching this determination, Dr. Schindler utilized the
November 27, 2006 audiogram and determined that maximum medical improvement had been
reached on that date. On January 19, 2007 the Office accepted that appellant sustained
employment-related noise-induced hearing loss.
In a decision dated January 23, 2007, the Office found that appellant had no compensable
impairment secondary to his employment-related hearing loss as it was not ratable for schedule
award purposes.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 specifies the number of
weeks of compensation to be paid for permanent loss of use of specified members, functions and
organs of the body.2 The Act does not, however, specify the manner by which the percentage
loss of a member, function or organ shall be determined. The method used in making such a
determination is a matter which rests in the sound discretion of the Office. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.3 The Office evaluates industrial hearing loss in accordance with the standards
contained in the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).4 Using the frequencies of 500, 1,000, 2,000 and 3,000
cps, the losses at each frequency are added and averaged.5 The “fence” of 25 decibels is then
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8107(c).

3

Renee M. Straubinger, 51 ECAB 667 (2000).

4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

Id. at 250.

2

deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.6 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9
ANALYSIS
The Board finds that the evidence of record does not establish that appellant is entitled to
a schedule award based on his accepted bilateral hearing loss because the November 27, 2006
audiogram results did not demonstrate ratable values.
The November 27, 2006 audiogram, the only study that complied with Office
certification procedures,10 demonstrated record values at the frequency levels of 500, 1,000,
2,000 and 3,000 cps of 15, 15, 20 and 20 decibels on the right for a total of 70 decibels. This
figure, when divided by 4, results in an average hearing loss of 17.5 decibels. The average of
17.5 decibels, when reduced by 25 decibels, results in a 0 percent monaural hearing loss in the
right ear. The frequency levels on the left at 500, 1,000, 2,000 and 3,000 cps revealed decibel
losses of 10, 15, 15 and 20, for a total of 60 decibels. This figure, when divided by 4, results in
an average hearing loss of 15 decibels, which when reduced by the 25 decibel fence, also results
in a 0 percent monaural hearing loss of the left ear. The Board thus finds that, as the

6

Id.

7

Id.

8

Id.

9

Horace L. Fuller, 53 ECAB 775 (2002).

10

Office procedures set forth requirements for the type of medical evidence used in evaluating hearing loss.
These include that the employee undergo both audiometric and otologic examination; that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately certified
audiologist; that the otologic examination be performed by an otolaryngologist certified or eligible for certification
by the American Academy of Otolaryngology; that the audiometric and otologic examination be performed by
different individuals as a method of evaluating the reliability of the findings; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the American Speech
and Hearing Association; that the audiometric test results include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores; and that the otolaryngologist’s report
include: date and hour of examination, date and hour of employee’s last exposure to loud noise, a rationalized
medical opinion regarding the relation of the hearing loss to the employment-related noise exposure and a statement
of the reliability of the tests. Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical
Records, Chapter 3.600.8(a) (September 1995); see Vernon Brown, 54 ECAB 376 (2003). The Board further notes
that the August 23, 2006 employing establishment audiogram demonstrated values at frequencies levels of 500,
1,000, 2,000 and 3,000 cps of 20, 10, 15 and 15 on the right and 15, 10, 5 and 20 on the left. As explained in this
decision, these values would not be ratable. Furthermore, the studies performed between 1969 and 2000 also do not
demonstrate a ratable impairment. The Board, therefore, finds that these studies do not establish that appellant is
entitled to a schedule award.

3

November 27, 2006 audiogram did not demonstrate that appellant’s hearing loss was ratable, he
was not entitled to a schedule award for his accepted hearing loss condition.11
Finally, the Board notes that, while the A.M.A., Guides, provides that tinnitus, in the
presence of a unilateral or bilateral hearing impairment, may impair speech discrimination and
provide for up to a five percent rating for tinnitus, in the presence of measurable hearing loss, if
the tinnitus impacts the ability to perform activities of daily living.12 However, as appellant’s
hearing loss is not ratable, he would not be entitled to the additional award for tinnitus.13
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award for his employment-related hearing loss as his hearing loss was not
ratable.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2007 be affirmed.
Issued: August 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
11

The Board, however, has long recognized that, if a claimant’s employment-related hearing loss worsens in the
future, he or she may apply for a schedule award for any ratable impairment. See Robert E. Cullison, 55 ECAB
570 (2004).
12

A.M.A., Guides, supra note 4 at 246.

13

See Juan A. Trevino, 54 ECAB 358 (2003).

4


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

)
)
)
)
)
)
)
)

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0430
Issued: September 13, 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 December 26, 2017 appellant, through counsel, filed a timely appeal from an August 8,
2017 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish the expansion of the
acceptance of his claim to include the additional conditions of aggravation of degenerative disc
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.

disease at L3-5 and L4-5, aggravation of mild facet arthropathy at L5-S1, radiculopathy, and
sciatica as causally related to his accepted June 18, 2014 employment injury.
FACTUAL HISTORY
On July 1, 2014 appellant, then a 48-year-old bulk mail dock clerk, filed a traumatic injury
claim (Form CA-1) alleging that on June 18, 2014, while at work, he strained his lower back after
lifting a trailer door. He stopped work and sought immediate medical treatment on the date of
injury.
By development letter dated July 8, 2014, OWCP informed appellant that the evidence of
record was insufficient to establish his traumatic injury claim. It advised him of the medical and
factual evidence needed. OWCP afforded appellant 30 days to submit the necessary evidence.
A June 18, 2014 emergency department discharge report reflected that appellant sought
treatment with Dr. David Scheffler, a doctor of osteopathic medicine, who diagnosed sacroiliac
inflammation.
In medical reports dated July 15 and September 16, 2014, Dr. Tiffany Williams, Boardcertified in physical medicine and rehabilitation, reported that appellant presented with complaints
of left-sided low back pain which started on June 18, 2014 while at work. Appellant reported that
on that date, he was opening a tractor trailer door when his back froze up. Dr. Williams noted that
appellant was evaluated in July for acute onset of left-sided low back pain with radiation of pain
into the left hip, buttock, and anterior thigh that started on June 18, 2014 while at work. A
September 15, 2014 magnetic resonance imaging (MRI) scan revealed degenerative disc disease
at L3-4 and L4-5, and mild facet arthropathy at L5-S1. Dr. Williams provided duty status reports
(Form CA-17) dated July 15 and September 16, 2014 documenting work restrictions for a
diagnoses of low back pain and leg weakness.
By decision dated October 16, 2014, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to the
accepted June 18, 2014 employment incident.
On November 12, 2014 appellant requested review of the written record before an OWCP
hearing representative.
In a September 16, 2014 diagnostic report, Dr. Ernest Madarang, a Board-certified
diagnostic radiologist, reported that a lumbar spine MRI scan revealed no high-grade central spinal
stenosis or foraminal narrowing, mild degenerative facet hypotrophy at L4-5 and L5-S1, and mild
degenerative disc disease at L2-3.
In an October 20, 2014 report, Dr. Williams noted an acute onset of low back pain and
radiation of pain in the left leg which started on June 18, 2014 while working. She related that
appellant had some resolution of symptoms, but continued to experience pain. Dr. Williams also
explained that appellant’s history, physical examination findings, and diagnostic studies revealed
likely etiologies of axial low back pain, degenerative disc disease at L3-4 and L4-5, mild facet
arthropathy at L5-S1, muscle strain in the lumbar region, and radicular like symptoms in the right
lower extremity. She provided work restrictions.
2

In a November 4, 2014 narrative report, Dr. Troy A. Burns, Board-certified in emergency
medicine, reported that appellant had been under his care since 2004 and was last evaluated on
June 23, 2014 following a June 18, 2014 work injury. Appellant experienced a sudden onset of
severe left low back and hip pain when bending over to open a semi-trailer door. He was treated
in the emergency department on that date and was subsequently referred to physical therapy.
By decision dated April 21, 2015, an OWCP hearing representative affirmed the
October 16, 2014 decision finding that the evidence of record failed to establish that his lumbar
injury was causally related to the accepted June 18, 2014 employment incident.
In medical reports dated November 17 and December 22, 2014, Dr. Williams diagnosed
low back pain, left SI joint arthropathy, facet arthropathy at L4-5 and L5-S1, lumbar muscle strain,
and spondylosis.
In an April 13, 2016 narrative report, Dr. Williams opined within a reasonable degree of
medical certainty that appellant lifting the trailer door on June 18, 2014 aggravated the diagnoses
of degenerative disc disease at L3-4 and L4-5 and mild facet arthropathy at L5-S1, causing
radiculopathy and sciatica after the injury. She further reported that this incident also caused a
lumbar strain. Dr. Williams noted that although the September 15, 2014 lumbar MRI scan showed
a degenerative condition, appellant was asymptomatic prior to the June 18, 2014 injury, leading
her to the conclusion that the injury aggravated the above diagnoses.
By decision dated July 6, 2016, OWCP accepted the claim for lumbar strain.
By decision dated July 6, 2016, OWCP vacated in part and affirmed in part the April 21,
2015 decision. It found that appellant had established a causal relationship between the June 18,
2014 employment incident and the diagnosis of lumbar strain. However, appellant failed to
establish causal relationship for the diagnoses of aggravation of degenerative disc disease at L3-4
and L4-5, aggravation of mild facet arthropathy at L5-S1, radiculopathy, and sciatica.3
On June 30, 2017 appellant, through counsel, requested reconsideration of the July 6, 2016
OWCP decision denying his claim for additional lumbar conditions. Counsel reported that the
claim should be expanded to include the additional conditions of degenerative disc disease at L3-4
and L4-5, mild facet atrophy at L5-S1, lumbar strain, radiculopathy, and sciatica as evidenced by
the medical reports of Dr. Williams and Dr. John W. Ellis, Board-certified in family medicine.
In a June 29, 2017 medical report, Dr. Ellis described the June 18, 2014 employment
incident when appellant was lifting a trailer door at work and felt sudden pain in his low back. He
noted that appellant experienced right low back pain approximately six years prior. Appellant was
treated with epidural injections and physical therapy and was subsequently asymptomatic two
months later. Dr. Ellis reported that he continued working heavy manual labor of opening and
shutting the mail door and a lot of bending and lifting without difficulty until the acute June 18,
2014 injury. He provided physical examination findings, a review of diagnostic testing, and
3

In another July 6, 2016 decision, OWCP determined that appellant was not entitled to continuation of pay during
his absence from work for the period June 19 through August 2, 2014. This issue is not before the Board on the
present appeal.

3

diagnosed sprain of ligament lumbar spine, muscle tendon unit strain of left back, and strain of left
iliolumbar ligament.
Dr. Ellis opined that appellant’s conditions and disability set forth in his findings arose out
of and in the course of appellant’s employment, and that employment factors and work duties
contributed to, aggravated, and/or caused his injuries. He explained that the lifting of the trailer
door caused a sudden increase of straining forces on the left iliolumbar and sacroiliac ligaments,
resulting in the need for emergency medical treatment. Dr. Ellis reported that the increased
pressure from the tight muscles in appellant’s back from the injury to the sacroiliac ligaments and
lumbar ligaments caused impingement of the left L5 and S1 spinal nerves. He noted that this was
very minor and there was no evidence of a herniated disc on physical examination or the MRI scan
study. Dr. Ellis noted that appellant injured his right low back about six years prior which was
indicative of a ligamentous injury. He opined that this was caused from his work of lifting doors
at the employing establishment and that appellant had been asymptomatic until the sudden injury
on the other side of his low back on June 18, 2014. Dr. Ellis noted that because appellant was able
to recover from the injury six years prior, it was indicative of a grade 1 strain whereas the June 18,
2014 injury was a grade 2 or 3 strain on the muscles, ligaments, and fibers in his left low back. He
reported that a grade 2 or 3 strain would result in the fibers being torn apart while a grade 1 strain
results in the fibers stretching.
In a July 3, 2017 note, Dr. Ellis reported that, if OWCP declined to accept appellant’s claim
for an obvious acute injury, he should consider filing an occupational disease claim (Form CA-2).
By decision dated August 8, 2017, OWCP affirmed the July 6, 2016 decision finding that
the medical evidence of record failed to establish causal relationship between the accepted June 18,
2014 employment injury and the additional conditions of aggravated degenerative disc disease at
L3-4 and L4-5, aggravated mild facet atrophy at L5-S1, radiculopathy, and sciatica.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.5 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.6
To establish causal relationship between the condition alleged, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized

4

Supra note 2.

5

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

6

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

4

medical opinion evidence supporting such causal relationship.7 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
The Board finds that appellant did not submit sufficient medical evidence to support the
expansion of his claim to include the additional conditions of aggravated degenerative disc disease
at L3-4 and L4-5, aggravated mild facet atrophy at L5-S1, radiculopathy, and sciatica were
causally related to the accepted June 18, 2014 employment injury.9
On the date of injury, appellant sought emergency medical treatment for complaints of low
back pain. While the emergency department discharge notes reflect immediate treatment for his
lumbar injury, the diagnosis provided was sacroiliac inflammation. This diagnosis is not at issue
in this appeal.
In medical reports dated July 15, 2014 through April 13, 2016, Dr. Williams described the
June 18, 2014 employment incident when appellant was lifting a trailer door and experienced low
back pain. In an April 13, 2016 narrative report, she opined within a reasonable degree of medical
certainty that lifting the trailer door on June 18, 2014 aggravated the diagnoses of degenerative
disc disease at L3-4 and L4-5 and mild facet arthropathy at L5-S1, causing radiculopathy and
sciatica following the injury. Dr. Williams further reported that this incident also caused a lumbar
strain. The Board finds that the opinion of Dr. Williams is not well rationalized. While she opined
that the diagnosed conditions were caused by the June 18, 2014 employment incident,
Dr. Williams failed to provide a sufficient explanation as to the mechanism of injury, namely, how
lifting a trailer door would cause or aggravate appellant’s degenerative lumbar conditions.10 She
explained that, although the September 15, 2014 lumbar MRI scan showed a degenerative
condition, appellant was asymptomatic prior to the June 18, 2014 employment injury, leading her
to conclude that the injury aggravated the above diagnoses. The Board has held that an opinion
that a condition is causally related because the employee was asymptomatic before the injury is
insufficient, without adequate rationale, to establish causal relationship.11 As noted by
Dr. Williams, the September 15, 2015 lumbar spine MRI scan revealed preexisting degenerative
7

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

8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

S.W., Docket 08-2538 (issued May 21, 2009).

11

M.R., Docket No. 14-0011 (issued August 27, 2014).

5

conditions. However, she failed to discuss appellant’s medical history, did not address why his
complaints were not caused by his preexisting degenerative condition, or discuss whether his
preexisting injury had progressed beyond what might be expected from the natural progression of
that condition.12 As it is unclear if appellant’s injury was caused by the June 18, 2014 employment
incident, a result of a preexisting condition, or due to degenerative changes, a well-rationalized
opinion is particularly warranted when there is a history of a preexisting condition.13 Without
explaining how physiologically the movements involved in the June 18, 2014 employment
incident caused or contributed to the diagnosed conditions, Dr. Williams’ opinion is equivocal in
nature and of limited probative value.14
The Board further finds that Dr. Ellis’ June 29, 2017 report fails to establish that appellant’s
alleged additional lumbar conditions are causally related to the accepted employment injury.
Dr. Ellis diagnosed sprain of ligament lumbar spine, muscle tendon unit strain of left back, and
strain of left iliolumbar ligament. He opined that appellant’s conditions set forth in his diagnosis
findings arose out of and in the course of appellant’s employment, and that employment factors
and work duties contributed to, aggravated, and/or caused his conditions. The Board notes that
Dr. Ellis’ opinion pertaining to causation and the mechanism of injury relates to the diagnosed
conditions of lumbar and ligament sprain. As noted above, OWCP already accepted the claim for
lumbar sprain. However, Dr. Ellis failed to provide a rationalized opinion pertaining to causal
relationship for the additional conditions of aggravated degenerative disc disease at L3-4 and L4-5,
aggravated mild facet atrophy at L5-S1, radiculopathy, and sciatica.
Dr. Ellis reported that the increased pressure from the tight muscles in his back due to
injury to the sacroiliac ligaments and lumbar ligaments caused impingement of the left L5 and S1
spinal nerves. However, as he reported this to be very minor with no evidence of herniated disc
on physical examination or MRI scan, it is unclear what objective evidence exists to indicate that
the preexisting degenerative conditions were caused or aggravated by the June 18, 2014
employment incident. It appears that the physician can only relate causal relationship of the
preexisting degenerative conditions through subjective means based on the longevity of appellant’s
symptoms. Dr. Ellis failed to identify objective evidence via clinical studies and examination
findings to provide support for the additional lumbar conditions. He further failed to discuss
whether appellant’s preexisting injuries had progressed beyond what might be expected from the
natural progression of that condition.15 As Dr. Ellis failed to provide a fully-rationalized opinion
causally relating appellant’s degenerative lumbar injuries to the accepted June 18, 2014
employment injury, his medical report fails to establish additional work-related injuries.16

12

R.E., Docket No. 14-0868 (issued September 24, 2014).

13

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

14

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
15

Supra note 12.

16

S.R., Docket No. 12-1098 (issued September 19, 2012).

6

The remaining medical evidence of record is also insufficient to establish appellant’s claim.
Dr. Burns’ November 4, 2014 report noted the onset of severe left low back and hip pain following
the June 18, 2014 employment incident when bending over to open a semi-trailer door. The Board
has consistently held that pain is a symptom, rather than a compensable medical diagnosis.17 As
Dr. Burns is attributing appellant’s symptoms to his employment duties rather than the diagnosed
medical conditions, his opinion on causal relationship is of limited probative value.18
Dr. Madarang’s September 16, 2014 report is also insufficient to establish appellant’s
claim as he merely interpreted diagnostic studies and provided no opinion on the cause of
appellant’s claimed conditions. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value.19 Any
medical opinion evidence appellant may submit to support his claim should reflect a correct history
and offer a medically sound explanation by the physician of how the specific employment incident,
in particular physiologically, caused or aggravated the claimed conditions.20
On appeal counsel for appellant argues that the medical reports establish that appellant’s
claim should be accepted for additional diagnosed conditions. An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.21
Appellant’s honest belief that his accepted employment incident aggravated his degenerative
lumbar conditions, however sincerely held, does not constitute the medical evidence necessary to
establish causal relationship.22 The Board finds that the record lacks rationalized medical evidence
establishing causal relationship between the accepted June 18, 2014 employment injury and the
additional conditions of aggravated degenerative disc disease at L3-4 and L4-5, aggravated mild
facet atrophy at L5-S1, radiculopathy, and sciatica.
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish the expansion
of the acceptance of his claim to include the additional conditions of aggravated degenerative disc
disease at L3-4 and L4-5, aggravated mild facet atrophy at L5-S1, radiculopathy, and sciatica as
causally related to the accepted June 18, 2014 employment injury.

17

C.F., Docket No. 08-1102 (issued October 10, 2008).

18

Supra note 12.

19

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

20

Supra note 8.

21

D.D., 57 ECAB 734 (2006).

22

See J.S., Docket No. 17-0967 (issued August 23, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 8, 2017 is affirmed.
Issued: September 13, 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