United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 20-1668
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On September 28, 2020 appellant, through counsel, filed a timely appeal from an August 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the August 5, 2020 decision.
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 her burden of proof to establish that OWCP should
expand the acceptance of her claim to include a low back injury, pelvic or hip condition, right lower
extremity pain, and a balance disorder causally related to an accepted July 23, 2019 employment
injury.
FACTUAL HISTORY
On July 23, 2019 appellant, then a 52-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right shin when she stepped into a hole
on a customer’s property while in the performance of duty. She stopped work on July 23, 2019. On
August 7, 2019 OWCP accepted the claim for right ankle sprain, a right lower extremity laceration,
and cellulitis of the right lower extremity.
In an August 8, 2019 report, Dr. Amy S. Beck, an osteopath Board-certified in internal
medicine, noted that the right anterior shin laceration was healing poorly, with serous sanguineous
fluid and mild surrounding reactive erythema. In a separate note of the same date, she held appellant
off work through August 29, 2019.
OWCP paid appellant wage-loss compensation on the supplemental rolls from September 7
through 13, 2019.
In September 18, 2019 reports, Dr. David S. German, a Board-certified plastic surgeon,
noted that appellant sustained a right lower leg injury with flap laceration on July 23, 2019. He
diagnosed a healed chronic ulcer of the right anterior lower leg and right lower leg discomfort with
activity. In a work status report of the same date, Dr. German returned appellant to light-duty work
with a restriction against operating vehicles.
Appellant returned to part-time, light-duty work on or about September 18, 2019 and again
stopped work on September 21, 2019.
In a September 23, 2019 prescription note, Dr. German held appellant off work through
October 3, 2019. In a report dated September 27, 2019, he returned her to light-duty work for four
hours a day with restrictions. Dr. German released appellant to full-duty work as of
October 14, 2019.4
Appellant resumed light-duty work on October 5, 2019. She stopped shortly afterward due
to right lower extremity pain. 5

4

Dr. German submitted periodic reports dated through November 6, 2019 noting appellant’s continuing lumbar and
right lower extremity symptoms.
5

OWCP received an October 5, 2019 hospital emergency department report signed by Nichole MacLellan, a family
nurse practitioner.

2

In a letter dated October 10, 2019, appellant requested that OWCP expand its acceptance of
her claim to include a balance problem, paraspinal muscle spasms, back pain, right hip pain,
coccygeal pain right lower extremity pain, right knee pain, and right-sided pelvic pain.
In an October 11, 2019 report, Dr. Mahesh Bagwe, a Board-certified orthopedic surgeon,
noted appellant’s complaints of back discomfort due to a slight limp. He opined that October 10,
2019 magnetic resonance imaging (MRI) scans of the right lower extremity demonstrated edema at
the anterior tibia wound site, and mild tendinitis along multiple tendons of the right ankle. 6
Dr. Bagwe recommended physical therapy to address muscle weakness in the right lower extremity.
In a development letter dated October 22, 2019, OWCP informed appellant of the additional
evidence needed to expand her claim for additional conditions causally related to the July 23, 2019
employment incident. It afforded her 30 days to submit the necessary evidence.
In response, appellant submitted an October 5, 2019 emergency department report by
Dr. John P. Fortney, Board-certified in emergency medicine, who diagnosed low back pain and
sequela of the accepted right lower extremity injury.
In an October 6, 2019 emergency department report, Dr. Steven Hilton, Board-certified in
emergency medicine, noted appellant’s complaints of back pain after lifting items and placing
weight on her right leg while at work. Appellant also experienced right-sided low back spasms
while pushing and pulling carts at work. Dr. Hilton opined that her back pain and spasms were due
to not bearing weight on her right leg for some time and continuing to favor it.
In an October 8, 2019 report, Dr. Beck diagnosed acute right-sided low back pain, neck pain,
weakness, and gait instability.
In an October 30, 2019 report, Dr. Bagwe noted slight weakness of right plantar flexion. He
recommended physical therapy to address deficits in balance and strength.
Appellant returned to work for four hours a day in early November 2019.
In a November 6, 2019 emergency department report, Dr. Thomas F. Wheeler, Boardcertified in emergency medicine, diagnosed lumbar spasm.
In reports dated November 8 and 13, 2019, Dr. Bagwe opined that appellant had right leg
weakness as she had not been physically active for months during recuperation from the July 23,
2019 employment injury. He recommended a work conditioning program. 7
In a December 12, 2019 development letter, OWCP again informed appellant of the type of
medical evidence needed to expand acceptance of her claim to include additional conditions causally

6

An October 10, 2019 MRI scan of the right lower extremity demonstrated subcutaneous edema in the region of a
skin wound anterior to the tibia, intramuscular edema within the tibialis anterior muscle and mild irregularity of its
myotendinous junction, and possible fluid collection along the anterior margin of the tibialis anterior muscle.
7

November 14, 2019 electromyography/nerve conduction velocity testing of the right lower extremity was within
normal limits.

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related to the July 23, 2019 employment incident. It noted that there was no deadline for her to
request expansion of her claim.
In a December 13, 2019 report, Dr. Bagwe noted that appellant was able to balance easily
on her right lower extremity and had run half a mile on a treadmill without difficulty. He noted that
an MRI scan demonstrated an injury to the tibialis anterior musculature with soft tissue injury and
a partial tear of the tibialis anterior tendon. In reports through January 15, 2020, Dr. Bagwe
recommended that appellant gradually increase her work hours.
By decision dated January 29, 2020, OWCP denied expansion of the claim to include
additional diagnosed conditions of the back or right knee, finding that the medical evidence of record
did not diagnose a back or knee condition or support a causal relationship between any additional
conditions and the July 23, 2019 employment injury.
On February 4, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review held on June 5, 2020. She submitted
additional evidence.
In January 31, 2020 reports, Dr. Bagwe noted that appellant had scar tissue at the site of the
accepted injury that moved with flexion of the tibialis anterior muscle. He opined that she had
residual weakness in her tibialis anterior musculature that affected her balance. Dr. Bagwe
permanently restricted lifting to 60 pounds.
In an April 2, 2020 report, Dr. Bagwe opined that appellant had attained maximum medical
improvement (MMI) on January 31, 2020. He opined that she had sustained 15 percent permanent
impairment of the right lower extremity. Dr. Bagwe noted permanent work restrictions against
working more than eight hours a day and lifting more than 60 pounds. He opined that these
restrictions and permanent impairment were “the result of [appellant’s] loss of strength of the tibialis
anterior musculature due to a partial tendon and muscular laceration.” Appellant had chronic right
lower extremity weakness that precipitated “early fatigue and poor balance with isolated weight
bearing on [her] right lower extremity.”
By decision dated August 5, 2020, the hearing representative affirmed the prior decision.
She found that the medical evidence was insufficient to establish causal relationship between the
July 23, 2019 employment incident and right knee, pelvis, hip, low back, or balance conditions.
Additionally, appellant related her conditions to restricted duties performed following the accepted
injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.8

8

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

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Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.9 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.10
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence. 11 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. 12 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.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include additional medical conditions as causally
related to an accepted July 23, 2019 employment injury.
Dr. Fortney indicated in his October 5, 2019 report that appellant had low back pain related
to sequela of the accepted right lower extremity injury. Dr. Hilton opined on October 6, 2019 that
appellant’s lumbar spasms were caused by not bearing weight on her right lower extremity during
recuperation and continuing to favor it. Both physicians provided a conclusory opinion and did not
explain, with rationale, their opinions as to how the accepted employment injury had caused or
aggravated additional diagnosed conditions. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was causally related to employment factors.14 Thus, their opinions are
of limited probative value and insufficient to establish expansion of the claim.
In an August 8, 2019 reports, Dr. Beck held appellant off work noting that her right anterior
shin laceration was healing poorly. She observed objective right leg weakness and acute right-sided
lumbar pain, as noted in her October 8, 2019 report. Dr. Wheeler diagnosed gait instability and
right lower extremity weakness in his November 6, 2019 report. However, these medical reports
9

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

10

Id.

11

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
12

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
13

See P.M., Docket No. 18-0287 (issued October 11, 2018).

14

D.S., Docket No. 21-0673 (issued October 10, 2021); A.L., Docket No. 18-1706 (issued May 20, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).

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do not offer an opinion as to whether these diagnosed conditions were causally related to the
accepted employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 15 These reports are, therefore, of no probative value on the issue of causal
relationship and are insufficient to meet appellant’s burden of proof.
In an October 11, 2019 report, Dr. Bagwe noted appellant’s complaints of back discomfort
due to a slight limp. In an October 30, 2019 report, he noted slight weakness of right plantar flexion.
In November 8 and 13, 2019 reports, Dr. Bagwe attributed this weakness to physical inactivity
during recuperation from the July 23, 2019 employment injury. He opined in January 31, 2020
reports that residual weakness in the tibialis anterior musculature affected appellant’s balance.
Dr. Bagwe noted in an April 2, 2020 report that the accepted laceration caused weakness of the
tibialis anterior musculature that precipitated poor balance with isolated weight bearing on
appellant’s right lower extremity. Although Dr. Bagwe indicated that the accepted injury could
cause or contribute to the additional conditions, he did not specify the objective clinical findings
that established causation. The Board has held that a medical opinion must provide an explanation
of how the specific employment incident or employment factors physiologically caused or
aggravated the additional diagnosed conditions. 16 Therefore, the Board finds that Dr. Bagwe’s
reports are of limited probative value and insufficient to establish appellant’s burden of proof.
In September 18, 2019 reports, Dr. German noted that appellant sustained a right lower leg
injury with flap laceration on July 23, 2019 and diagnosed a healed chronic ulcer of the right anterior
lower leg and right lower leg discomfort with activity. In a work status report of the same date, he
returned appellant to light-duty work with a restriction against driving vehicles. In a September 23,
2019 prescription note, Dr. German held appellant off work through October 3, 2019. In a report
dated September 27, 2019, he returned her to light-duty work for four hours a day with restrictions,
releasing appellant to full-duty work as of October 14, 2019. Dr. German also submitted periodic
reports through November 6, 2019, noting appellant’s continuing lumbar and right lower extremity
symptoms. In none of those reports, however, did Dr. German provide an opinion regarding causal
relationship between appellant’s additional diagnosed conditions and the accepted July 23, 2019
employment injury. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship. 17 Thus, the Board finds that the reports of Drs. German are of no probative value on
the issue of causal relationship and are insufficient to meet appellant’s burden of proof.

15

S.S., Docket No. 21-0837 (issued November 23, 2021); see J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
16

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and a
diagnosed condition/disability).
17

Id.

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Appellant also submitted diagnostic studies that addressed her right lower extremity.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the
issue of causal relationship. 18
As the medical evidence of record is insufficient to establish expansion of the acceptance of
the claim to include additional conditions causally related to or as a consequence of her accepted
employment injury, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include a low back injury, pelvic or hip condition,
right lower extremity pain, and a balance disorder causally related to an accepted July 23, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

S.S., id.; C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued
September 10, 2018).

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

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Appearances:
Robyn G. March, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1593
Issued: May 3, 2012

Case Submitted on the Record

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

JURISDICTION
On June 27, 2011 appellant, through her attorney, filed a timely appeal from the
December 30, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her recurrence of disability claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after February 10, 2010 due to her work injury.
FACTUAL HISTORY
In February 23, 2000, OWCP accepted that appellant, then a 46-year-old distribution
clerk, sustained a lumbar strain due to the repetitive duties of her job overtime, including the
1

5 U.S.C. §§ 8101-8193.

lifting and carrying of mail trays.2 On her occupational claim form, appellant had indicated that
she first became aware of her back injury on February 5, 2010.3 She began working in a lightduty position with work restrictions including no bending, no prolonged walking and no lifting
more than five pounds. OWCP paid compensation for periods of disability.4
In a June 23, 2009 report, Dr. Elizabeth Weiss, an attending Board-certified internist,
stated that appellant had struggled with chronic low back pain and radiating pain in her right leg
which limited her to working six hours per day at the employing establishment.5 She noted that
appellant’s injury occurred in February 2000 and indicated that her treatment included steroid
injections and physical therapy.
In several duty status reports dated between July 2009 and February 2010, Dr. Weiss
noted appellant’s February 2000 work injury and indicated that she could only work six hours
per day and was restricted from lifting more than 15 pounds and engaging in bending. Appellant
could sit and stand on an intermittent basis.6 On January 12, 2010 Dr. Weiss responded to an
employing establishment request for more information about appellant’s condition and checked a
box indicating that the residuals of her February 2000 work injury had not resolved.
On February 10, 2010 the employing establishment advised appellant that her job was
being terminated under the National Reassessment Process (NRP) and that no work was
available for her within her work restrictions.
On February 10, 2010 appellant filed a claim (Form CA-2a) alleging that she sustained a
recurrence of total disability on February 10, 2010 because the employing establishment
withdrew her light-duty assignment.
In a March 17, 2010 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. Appellant resubmitted the findings of October 13,
2009 MRI scan testing of her lumbar spine.
In an April 26, 2010 decision, OWCP denied appellant’s claim that she sustained a
recurrence of total disability on or after February 10, 2010 due to her work injury. It noted that
she claimed that she sustained a recurrence of total disability on February 10, 2010 due to the
2

Appellant’s regular work required her to continuously lift up to 25 pounds and intermittently lift up to 70
pounds. OWCP had previously accepted that she sustained a work-related back strain on January 16, 1999.
3

A number of documents list appellant’s work injury as occurring on February 5, 2000, but it is clear from the
record that her injury was sustained overtime and became apparent in early February 2000.
4

Appellant stopped work on August 20, 2008 and filed a claim alleging that she sustained a recurrence of total
disability on that date due to her accepted work injury. In a January 7, 2009 decision, OWCP denied her claim on
the grounds that she did not submit sufficient medical evidence to establish that she sustained a work-related
recurrence of total disability. Appellant returned to light-duty work at the employing establishment for six hours per
day with restrictions, including no lifting more than 15 pounds and no bending.
5

The report was also signed by Miki MacDonald, an attending nurse practitioner.

6

The findings of October 13, 2009 magnetic resonance imaging (MRI) scan testing of appellant’s lumbar spine
showed minimal focal degenerative disc disease at L5-S1 which appeared to be stable.

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withdrawal of her light-duty job under the NRP. OWCP found that the submitted factual and
medical evidence did not establish that the claimed recurrence was caused by the accepted work
injury because “there was no updated medical evidence to support any ongoing restrictions …
due to your accepted injury.”
Appellant requested a telephone hearing with an OWCP hearing representative.7 During
the October 13, 2010 hearing, appellant’s counsel discussed appellant’s work-related back injury
in 2000 and her return to work in a light-duty position. She stated that the employing
establishment withdrew appellant’s job assignment as of February 10, 2010 under the NRP and
posited that, given appellant’s continuing work-related residuals, she was entitled to OWCP
benefits due to the withdrawal of work. She referenced OWCP’s regulations under 20 C.F.R.
§ 10.5(x) and Board predecent.8
In a November 15, 2010 letter, Dr. Weiss indicated that appellant had been a patient for
the last eight years and had struggled with a lumbar strain from an injury incurred at work in
February 2000, which was caused by engaging in repetitive lifting and carrying of mail trays.9
She noted that appellant’s medical condition and physical limitations had persisted over the past
10 years with continued low back pain radiating down her right leg. Dr. Weiss stated that, due to
the original workplace injury which occurred in February 2000, appellant had not been able to
improve to her preinjury level of activity and had not been able to return to her regular work at
the employing establishment. She noted that the lumbar strain in 2000 had left appellant with a
weakened lower back which, despite attempts at rehabilitation, had not improved enough for her
to do any type of physical labor or work more than six hours a day. Whenever, appellant
attempted to increase her hours or physical activity, she ended up having more back pain and
being debilitated.
In a December 30, 2010 decision, an OWCP hearing representative affirmed OWCP’s
April 26, 2010 decision. OWCP noted that appellant’s light-duty job had been withdrawn under
the NRP and discussed the medical evidence she submitted in support of her claim. It stated:
“The [Board] has held that, when a claimant stops work for reasons unrelated to
her accepted employment injury, she has no disability within the meaning of
[FECA]. While the dismissal acted effectively as a withdrawal of light-duty
status, it cannot form the basis for a disability compensation claim because the
dismissal had nothing to do with the claimant’s ability to perform the light-duty
requirements of the job assignment. As the withdrawal of the position was
premised on the agency’s general withdrawal regarding [NRP], the loss of the
claimant’s position does not constitute a recurrence of disability. Currently, the
record lacks any medical evidence establishing that the claimant could not

7

Prior to the hearing, appellant submitted a May 3, 2010 report in which Dr. Weiss stated that she could only
work six hours per day with restrictions, including no lifting more than 15 pounds.
8

Counsel expanded on this argument in memoranda dated October 13 and November 15, 2010.

9

The report was also signed by Ms. MacDonald.

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perform in the job at the time that the agency withdrew work and has there been
[sic] any evidence establishing a change or modification of the restrictive[-]duty
assignment.”
LEGAL PRECEDENT
Recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical limitations.10
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.11 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.12
FECA Bulletin No. 09-05 outlines procedures for light-duty positions withdrawn
pursuant to the NRP. Regarding claims for total disability when a loss of wage-earning capacity
(LWEC) decision has not been issued, the bulletin provides:
“1. If the claimant has been on light duty due to an injury[-]related condition
without an LWEC [loss of wage-earning capacity] rating (or the [claims
examiner] (CE) has set aside the LWEC rating as discussed above), payment for
total wage loss should be made based on the [Form] CA-7 as long as the
following criteria are met -The current medical evidence in the file (within the last [six] months)
establishes that the injury[-]related residuals continue;
The evidence of file supports that light duty is no longer available; and

10

20 C.F.R. § 10.5(x).

11

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
12

Maurissa Mack, 50 ECAB 498 (1999).

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There is no indication that a retroactive LWEC determination should be
made. (Note -- Retroactive LWEC determinations should not be made in
these NRP cases without approval from the District Director.)”13
FECA Bulletin No. 09-05 also states that, if the medical evidence is not sufficient, the
claims examiner should request current medical evidence from the employing establishment and
the claimant.14
ANALYSIS
Appellant filed a claim for recurrence of total disability commencing February 10, 2010.
The record indicates that her light-duty job was withdrawn pursuant to the NRP program. The
guidelines for evaluating a claim for total disability under these circumstances are noted above in
FECA Bulletin 09-05,15 but in this case OWCP failed to discuss FECA Bulletin No. 09-05 or
properly consider the evidence presented in light of the guidelines contained in the bulletin.
OWCP’s hearing representative stated that, while there was a withdrawal of the position under
the NRP, the loss of the light-duty position does not constitute a recurrence of disability.
It is well established, as noted above, that a withdrawal of a light-duty position is
considered a recurrence of disability under OWCP regulations. The guidance from FECA
Bulletin No. 09-05 indicates that OWCP should consider whether the current medical evidence
established that appellant had continuing employment-related residuals at the time of the
withdrawal of the light-duty position. If the medical evidence is not sufficient, OWCP should
request additional evidence.16
In this case, OWCP failed to properly follow the guidelines in FECA Bulletin No. 09-05.
It did not properly review the medical evidence from Dr. Weiss, an attending Board-certified
internist, in light of the withdrawal of the light-duty position. Accordingly, the case will be
remanded to OWCP for further consideration. After such further development as OWCP deems
necessary, it should issue an appropriate decision with proper findings on the issue presented.
CONCLUSION
The Board finds that the case must be remanded to OWCP for proper findings on the
issue presented.

13

FECA Bulletin No. 09-05 (issued August 18, 2009).

14

Id.

15

The bulletin refers to a Form CA-7, claim for compensation, but the Form CA-2a, claim for a recurrence of
disability, also represents a claim for total disability.
16

It would be OWCP’s burden of proof to show that employment-related residuals had ceased. See J.A., Docket
No.11-1592 (issued February 13, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the December 30, 2010 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: May 3, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HAMPTON VETERANS ADMINISTRATION
MEDICAL CENTER, Hampton, VA, Employer
__________________________________________

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

Docket No. 17-0689
Issued: May 9, 2018

Case Submitted on the Record

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

JURISDICTION
On February 6, 2017 appellant filed a timely appeal from a November 8, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on July 14, 2016, as alleged.
FACTUAL HISTORY
On July 18, 2016 appellant, then a 46-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a low back injury on July 14, 2016 while moving a
1

5 U.S.C. § 8101 et seq.

patient from a stretcher to a wheelchair and lifting the lower part of the patient’s body to place
pillows under him. She stopped work that same day. On the reverse side of the claim form,
appellant’s immediate supervisor checked a box marked “Yes” to indicate that the claimed July 14,
2016 injury occurred in the performance of duty.
On July 15, 2016 appellant sought treatment for her claimed injury at an emergency room.
In a July 15, 2016 report, Xinde Song, an attending physician assistant, indicated that appellant
reported that she developed acute low back pain while lifting a patient at work on July 14, 2016.
Appellant also reported that she had experienced chronic low back pain for eight years prior to the
claimed July 14, 2016 incident. Mr. Song indicated that physical examination revealed no focal
weakness from a neurological standpoint and he noted that appellant was disabled from work.
In a July 18, 2016 duty status report (Form CA-17), an attending family nurse practitioner
with an illegible signature noted that appellant reported experiencing lumbar pain after
repositioning a patient on July 14, 2016. The nurse practitioner diagnosed lumbar strain and
indicated that appellant could resume work on July 25, 2016.
OWCP received the findings of a July 26, 2016 magnetic resonance imaging (MRI) scan,
which showed multilevel degeneration between L2-3 and L5-S1 causing various degrees of spinal
canal and neuroforaminal narrowing.
In early-August 2016 appellant sought treatment for her back problems from Dr. John W.
Aldridge, a Board-certified orthopedic surgeon. In an August 2, 2016 report entitled “History and
Physical,” Dr. Aldridge indicated that appellant complained of low back pain which developed
acutely after pulling on a patient at work on July 14, 2016. He discussed the findings of his
August 2, 2016 physical examination noting that appellant exhibited lumbar spine muscle spasms
and moderate pain upon mildly reduced range of motion of the lumbar spine. Straight leg test was
negative and sensation/strength testing of the lower extremities yielded normal results.
Dr. Aldridge diagnosed degenerative lumbar disc disease and recommended that appellant engage
in physical therapy and a home exercise program.2
In an August 2, 2016 note entitled “Orders Note,” Dr. Aldridge indicated that appellant
could return to work as of August 2, 2016 with various work restrictions including lifting no more
than 30 pounds, standing for no more than 2½ hours per day, walking for no more than 2½ hours
per day, and no engaging in climbing, crawling, kneeling, or squatting.3
In an authorization form for examination and/or treatment (Form CA-16) completed on
August 4, 2016, Dr. Aldridge listed the history of the claimed July 14, 2016 injury as “pain began
after pulling on a patient” and indicated that appellant had the preexisting condition of degenerative
2

Dr. Aldridge produced an August 2, 2016 note detailing the nature of the recommended physical therapy and the
record contains numerous reports from Marc Forrest, William Powers, Robert Williams and Chad Carlson, appellant’s
attending physical therapists.
3

This note listed the date of injury as July 14, 2016 and contained a diagnosis of lumbar spine pain. Dr. Aldridge
also produced an August 2, 2016 work capacity evaluation form (Form OWCP-5c) which contained a diagnosis of
lumbar spine pain and delineated similar work restrictions. On August 2, 2016 appellant returned to limited-duty
work for the employing establishment.

2

disc disease at multiple levels. He indicated “see attached” in the portion of the form for listing
his findings and diagnoses, and he provided copies of the above-described August 2, 2016 report
and August 2, 2016 note. Dr. Aldridge checked a box marked “Yes” to indicate that the medical
condition found was caused or aggravated by the described employment incident. He found that
appellant was partially disabled from August 2 to September 2, 2016 and indicated “see attached”
in the portion of the form for listing work restrictions. Dr. Aldridge recommended that appellant
participate in physical therapy sessions on a periodic basis.
In a September 2, 2016 progress report, Dr. Aldridge again diagnosed degenerative lumbar
disc disease. He provided a history of the claimed July 14, 2016 injury and physical examination
findings from September 2, 2016 which were similar to those contained in his August 2, 2016
report entitled, “History and Physical.” In a September 2, 2106 note, Dr. Aldridge noted that
appellant could return to work on September 2, 2016 and he provided work restrictions similar to
those contained in his August 2, 2016 note entitled “Orders Note.”
In September 30, 2016 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the claimed July 14, 2016 employment incident caused or aggravated a
medical condition. It requested that appellant complete and return an attached questionnaire which
posed various questions regarding the claimed July 14, 2016 employment incident. On
September 30, 2016 OWCP also requested additional information from the employing
establishment. It provided appellant and the employing establishment 30 days to respond.4
Appellant submitted October 4 and November 4, 2016 progress reports in which
Dr. Aldridge again diagnosed degenerative lumbar disc disease. In these reports, Dr. Aldridge
provided a history of the claimed July 14, 2016 injury and physical examination findings from
October 4 and November 4, 2016 which were similar to those contained in his prior reports. In
October 4 and November 4, 2016 notes, Dr. Aldridge provided work restrictions which were
similar to those he previously provided.5
Appellant also resubmitted copies of the July 26, 2016 MRI scan and the August 2 and
September 2, 2016 reports of Dr. Aldridge.
By November 8, 2016 decision, OWCP denied appellant’s claim for a July 14, 2016
employment injury, finding that she failed to establish the occurrence of an employment incident
on July 14, 2016 as alleged.6 OWCP further indicated that appellant failed to submit medical

4

The employing establishment did provide any response to OWCP’s request in the allotted time period. Although
appellant submitted new medical evidence and administrative documents, she did not complete and return the factual
questionnaire within the allotted time period.
5

Appellant also submitted several administrative documents and notes from October 2016 in which Dr. Aldridge
ordered steroid injections.
6
OWCP indicated that appellant had not completed and returned the factual questionnaire sent to her on
September 30, 2016 and noted that therefore the “factual portion of your claim remains unclear.”

3

evidence sufficient to establish a diagnosed medical condition causally related to the claimed
employment incident/injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action. An employee has not met his or her burden of proof of 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. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.
The employee must also submit evidence, in the form of medical evidence, to establish that
the employment incident caused a personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
7

See supra note 1.

8

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

9

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
10

Julie B. Hawkins, 38 ECAB 393 (1987).

11

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

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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.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury due
to a July 14, 2016 employment incident.
Appellant claimed that she sustained a low back injury on July 14, 2016 while moving a
patient from a stretcher to a wheelchair and lifting the lower part of the patient’s body to place
pillows under him. She stopped work on July 14, 2016 and returned to limited-duty work on
August 2, 2016. In a November 8, 2016 decision, OWCP denied appellant’s claim for a July 14,
2016 employment injury because she failed to establish the factual aspect of the fact of injury. It
found that she did not establish the occurrence of an employment incident on July 14, 2016.
As noted above, to establish the fact of injury the employee must submit sufficient evidence
to establish that he or she actually experienced the employment incident at the time, place, and in
the manner alleged.13 The Board finds that appellant has established that an employment incident
occurred on July 14, 2016 in the form of moving a patient from a stretcher to a wheelchair and
lifting the lower part of the patient’s body to place pillows under him. Appellant reported the date
and mechanism of the claimed July 14, 2016 injury in a consistent manner to OWCP and medical
practitioners. She reported the claimed July 14, 2016 employment injury and stopped work on
that same date. Appellant sought medical care for her claimed condition on July 15, 2016. The
Board finds that there are no inconsistencies in the evidence which would cast serious doubt upon
the validity of appellant’s claim and her account of the July 14, 2016 incident at work is not refuted
by strong or persuasive evidence.14
The Board further finds that, although appellant has established a July 14, 2016
employment incident, she has not submitted rationalized medical evidence sufficient to establish
a diagnosed medical condition causally related to the July 14, 2016 employment incident.15
Appellant submitted an August 4, 2016 Form CA-16 from Dr. Aldridge who listed the
history of the July 14, 2016 injury as “pain began after pulling on a patient” and indicated that
appellant had the preexisting condition of degenerative disc disease at multiple levels. In the
portion of the form for listing his findings and diagnoses, Dr. Aldridge indicated that reference
should be made to attached documents, and he submitted an August 2, 2016 report which detailed
12

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

13

See supra note 10.

14

See supra notes 15 through 17.

15

D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale explaining the relationship between a given employment
incident/activity and a diagnosed medical condition).

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the findings of an August 2, 2016 physical examination and contained a diagnosis of degenerative
lumbar disc disease.16 He checked a box marked “Yes” to indicate that the medical condition
found was caused or aggravated by the described employment incident and he found that appellant
was partially disabled from August 2 to September 2, 2016.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking “Yes” to a form question, without more by the way of medical rationale, that opinion has
little probative value and is insufficient to establish causal relationship. Appellant’s burden of proof
includes the necessity of furnishing an affirmative opinion from a physician who supports her
conclusion with sound medical reasoning.17 As Dr. Aldridge did no more than check “Yes” to a
form question on the August 4, 2016 Form CA-16, his opinion on causal relationship is of little
probative value and is insufficient to discharge appellant’s burden of proof. He did not describe the
July 14, 2016 employment incident in any detail or provide a discussion, supported by objective
findings, explaining how it would have been competent to cause or contribute to the diagnosed
medical condition. The provision of such explanation is especially necessary in the present case
because appellant had reported that she had experienced nonwork-related chronic low back pain
for eight years prior to the July 14, 2016 employment incident.18
The Board further finds that the August 2, 2016 report and August 2, 2016 note that
Dr. Aldridge attached to his August 4, 2016 Form CA-16 do not establish appellant’s claim for a
July 14, 2016 employment injury because the reports do not contain any opinion on the cause of
the diagnosed low back conditions. The Board has held that medical evidence which does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship and therefore the submission of these reports does not establish appellant’s claim
for a July 14, 2016 employment injury.19
Appellant also submitted numerous medical reports describing the periodic treatment she
received for her back condition. For example, in September 2, October 4, and November 4, 2016
progress reports, Dr. Aldridge again diagnosed degenerative lumbar disc disease. In these reports,
he provided a history of the claimed July 14, 2016 injury and physical examination findings from
September 2, October 4, and November 4, 2016 which were similar to those contained in his
August 2, 2016 report. In September 2, October 4, and November 4, 2016 notes, Dr. Aldridge
provided work restrictions which were similar to those he previously provided.
Although these reports mention the July 14, 2016 employment incident and contain a
diagnosis for a low back condition, none of these reports contains a clear opinion relating a diagnosed
16

Dr. Aldridge also attached an August 2, 2016 note which delineated work restrictions and contained a diagnosis
of lumbar spine pain.
17

Lillian M. Jones, 34 ECAB 379, 381 (1982).

18
The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).
19

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

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condition to the July 14, 2016 employment incident. As noted above, medical evidence which does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.20 Therefore, the submission of these reports does not establish
appellant’s claim for a July 14, 2016 employment injury.21
For these reasons, appellant has not met her burden of proof to establish an injury due to a
July 14, 2016 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that the July 14, 2016 employment incident
occurred as alleged. However, appellant has not established a medical condition causally related
to the accepted July 14, 2016 employment incident.

20

See supra note 19.

21

The record also contains reports of a physician assistant, nurse practitioner, and several physical therapists.
However, these reports do not constitute probative medical evidence because these health care providers are not
considered physicians within the meaning of FECA. See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); M.C., Docket No.
16-1238 (issued January 26, 2017); R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829
(issued August 20, 2013).

7

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: May 9, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Colorado Springs, CO,
Employer
__________________________________________

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

Docket No. 08-114
Issued: April 8, 2008

Case Submitted on the Record

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

JURISDICTION
On October 15, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 30, 2007 merit decision denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant sustained a traumatic injury on June 13, 2007 causally
related to factors of her federal employment.
FACTUAL HISTORY
On June 18, 2007 appellant, a 35-year-old security screener, filed a traumatic injury claim
(Form CA-1) alleging that on June 13, 2007 she broke out in hives while screening bags. In a
June 13, 2007 witness statement, Jan Harris, a coworker, indicated that she observed hives and

redness on appellant’s face and arms. She also stated that appellant informed a supervisor that
she was breaking out in hives.
On July 2, 2007 the Office notified appellant that the evidence submitted was insufficient
to establish her claim. The Office advised her to provide within 30 days additional information
and documentation, including details surrounding the alleged incident, and a physician’s report
containing a specific diagnosis and an opinion supported by a medical explanation as to how the
reported work incident caused or aggravated the claimed injury.
Appellant submitted a June 13, 2007 prehospital care report, signed by Chad Bauer, a
paramedic. The report reflected that appellant was treated at the employing establishment on
June 13, 2007 for an “acute onset face allergic reaction radiating to neck, chest and arms,
provoked by none since 10 minutes.” Mr. Bauer stated that appellant was searching baggage
when she possibly came into contact with an unknown substance which “may be causing” her to
have an allergic reaction. Appellant experienced a sudden onset of “not feeling well,” and a
burning and itching sensation to her face, neck, jaw, chest and arms. Mr. Bauer noted erythema
to appellant’s upper arms, anterior chest, neck and jaw area bilaterally. Appellant’s clothing was
placed in a biohazard bag and sealed.
Appellant submitted emergency room records from Memorial Hospital. In a report dated
July 14, 2007, Dr. Timothy A. Jamison, Board certified in emergency medicine, related
appellant’s statement that, after checking a bag in her capacity as a security screener, she
developed an abrupt reaction, involving itching in the skin of the neck, face and arms. Appellant
also turned bright red and felt short of breath. When she attempted to “rinse it off” in the
bathroom, the symptoms allegedly worsened, so paramedics were called. Appellant did not
notice exposure to any chemicals, powder or other substance. Dr. Jamison’s June 13, 2007
examination revealed diffuse mild erythema of the cheeks, no swelling of the eyes, tongue or
uvula, no stridor or wheezing and regular heart rate. He diagnosed “allergic reaction.”
However, Dr. Jamison stated, “We cannot identify any particular substance that caused this
reaction. It may have been some sort of pet hair or dander in the luggage that triggered an
allergic reaction.” Dr. Jamison found no evidence of any sort of toxidrome or anticholinergic
crisis or evidence of poisoning. A June 13, 2007 initial triage assessment, signed by Stephanie
Gifford, a registered nurse, reflected appellant’s report that, while checking bags at work, she
was exposed to an unknown substance and had a sudden onset of redness and hives to her upper
extremity. Discharge instructions were prepared by Ms. Gifford on June 13, 2007.
Appellant submitted reports from Dr. Peter Walsh, Board-certified in the field of
preventive medicine. On June 14, 2007 Dr. Walsh described the events of the previous day.
Appellant stated that, after opening a number of suitcases at work, she noted an onset of itching
and a rash on her face, trunk and arms, as well as shortness of breath. She was transported to the
hospital and treated for an allergic reaction. Dr. Walsh diagnosed allergic reaction; etiology
unclear. He stated, “It is unclear whether this is an occupational injury or not given the fact that
the actual cause of the patient’s reaction is unclear; hence occupational relatedness is
undetermined.”
On June 15, 2007 Dr. Walsh indicated that appellant was doing well following her
June 13, 2007 allergic reaction. On June 19, 2007 he indicated that appellant’s June 13, 2007

2

allergic reaction “may have been anaphylactic in nature,” but stated that emergency room reports
were not available for his review. Dr. Walsh noted that appellant had not experienced a
recurrence of her rash, shortness of breath or itching. He provided an assessment of “history of
allergic reaction etiology unknown, however, symptoms resolved; probable benign positional
vertigo, nonoccupational in etiology.” Dr. Walsh stated that the diagnosed condition was “likely
occupational.” In a June 19, 2007 physician’s report, he indicated that appellant was able to
return to unrestricted duty.
By decision dated August 30, 2007, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that appellant had sustained an injury in the performance of
duty. The Office found that she had failed to identify the source of the irritation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether fact of injury has been established. Generally, fact
of injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged by a
preponderance of the reliable, probative and substantial evidence.3 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, as alleged, but the employee’s statements must be consistent with
surrounding facts and circumstances and his or her subsequent course of action. 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 cast doubt on an employee’s statements in determining whether he or she has established a
prima facie case.4 However, an employee’s statement alleging that an injury occurred at a given
time and in a given manner is of great probative value and will stand, unless refuted by strong or
persuasive evidence.5
The second component is whether the employment incident caused a personal injury, and
generally this can be established only by medical evidence.6 As part of this burden, the claimant

1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

Charles B. Ward, 38 ECAB 667 (1987).

4

See Paul Foster, 56 ECAB 208 (2004). See also Merton J. Sills, 39 ECAB 572, 575 (1988).

5

Thelma S. Buffington, 34 ECAB 104 (1982).

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

3

must present rationalized medical opinion evidence.7 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors.8 The opinion of the physician must be based on a complete factual and
medical background of the claimant,9 and must be one of reasonable medical certainty,10
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.11
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury on June 13, 2007. She noted on her CA-1 form that she broke
out in hives while screening bags. However, appellant provided no detailed account of injury.
She presented no evidence regarding the specific mechanism of injury, as required in a claim for
traumatic injury; nor did she allege that she experienced a specific event, incident or exposure at
a definite time, place and manner.12 Although a coworker observed hives and redness on her
face and arms, she did not witness her exposure to any item or chemical substance. Appellant
told her doctors that, after opening a number of suitcases at work, she noted an onset of itching
and a rash on her face, trunk and arms, as well as shortness of breath. She acknowledged that
she did not notice exposure to any chemicals, powder or other substance. Appellant failed to
identify any particular substance which may have caused her reaction. Her recitation of the facts
does not establish her allegation that a specific exposure caused an injury.13
Dr. Jamison related appellant’s report that, after checking a bag in her capacity as a
security screener, she developed an abrupt reaction, involving itching in the skin of the neck,
face and arms. Appellant turned bright red and felt short of breath. However, she stated that she
did not notice exposure to any chemicals, powder or other substance, nor did she identify a
specific piece of baggage which might have been inspected for toxic substances. Dr. Jamison
stated that no particular substance could be identified as the cause to appellant’s reaction. Other
emergency room records, including a triage assessment, reflect appellant’s allegation that she
experienced an allergic reaction to an unknown substance.

7

Joseph T. Gulla, 36 ECAB 516 (1985).

8

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

See Tracey P. Spillane, 54 ECAB 608 (2003) ( where an employee filed a claim alleging that she sustained an
allergic reaction at work, but failed to clearly identify, or report to her physicians, the aspect of her employment
which she believed caused the claimed condition, the Board held that she did not adequately specify the employment
factors which caused her need for medical treatment; nor did she specify details such as the extent and duration of
exposure to any given employment factors). See also Betty J. Smith, 54 ECAB 174 (2002).
13

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

Appellant told Dr. Walsh that, after opening a number of suitcases at work, she noted an
onset of itching and a rash on her face, trunk and arms, as well as shortness of breath. Again, she
did not identify or describe a specific bag, or substance within a bag, which may have been
responsible for her reaction. Dr. Walsh stated that, as the cause of appellant’s reaction was
unclear, “occupational relatedness is undetermined.”
The paramedic who treated appellant at the work site stated that she was searching
baggage when she possibly came into contact with an unknown substance which “may be
causing” her to have an allergic reaction. This report does not identify a specific causative event
and reflects uncertainty as to the derivation of appellant’s condition.
Appellant alleged that she sustained an allergic reaction at work on June 13, 2007.
However, she has not established exposure to any specific agent or chemical on that date.
Appellant has not clearly identified the aspect of her employment which she believed caused her
to suffer the claimed condition on June 13, 2007. She made reference to possibly having a
reaction to some substance contained in any number of pieces of baggage checked, but she did
not clearly specify such details as the extent and duration of exposure to any given employment
factor. The Office provided appellant with an opportunity to clarify her claim, but she failed to
do so. Appellant expressed her belief that her condition resulted from exposure to an
unidentified substance contained in baggage she was required to check on June 13, 2007. The
Board has held that the mere fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two.14 Neither the fact
that the condition became apparent during a period of employment, nor the belief that the
condition was caused or aggravated by employment factors or incidents, is sufficient to establish
causal relationship.15 Causal relationship must be substantiated by reasoned medical opinion
evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief that her
condition was caused by a work-related injury is not determinative.
The Board finds that appellant has failed to establish the fact of injury: she did not
submit sufficient evidence to establish that she actually experienced an employment incident at
the time, place and in the manner alleged; or that the alleged incident caused a diagnosed
condition. As she has not met her burden of proof to establish the fact of injury, it is not
necessary to discuss the probative value of the medical reports.16
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury on June 13, 2007 causally related to her employment.

14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Id.

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the October 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY HOSPITAL, Tampa, FL,
Employer
__________________________________________

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

Docket No. 06-1905
Issued: February 28, 2007

Case Submitted on the Record

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

JURISDICTION
On August 14, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated January 10, 2006 and a nonmerit decision dated
June 12, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction both the
merit and nonmerit issues in this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed a herniated disc due to factors of her federal employment; and (2) whether the Branch
of Hearings and Review properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On November 22, 2005 appellant, then a 36-year-old nurse, filed a notice of occupational
disease alleging that she had developed a herniated disc due to the wear and tear of working

prolonged periods at the computer and reaching forward to handle calls. Appellant first became
aware of her condition on October 22, 2005 and attributed her condition to her employment on
that date.
In a letter dated December 1, 2005, the Office requested additional factual and medical
evidence in support of appellant’s claim and allowed her 30 days for a response.
Norma Figueroa, appellant’s supervisor, submitted a statement dated November 23, 2005
noting that appellant did not report any difficulties until October 26, 2005. She stated that
appellant initially denied that her neck condition was employment related. Ms. Figueroa noted
that appellant had previously received treatment for episodic neck pain and suggested that she
had a preexisting nonemployment-related neck condition.
Appellant responded to the Office’s request for information on December 2, 2005. She
attributed her neck condition to constant repetitive movements and tasks while working in a
stationary position at a computer. Appellant also implicated her employment duties of reaching
for the telephone, cradling the telephone between her neck and shoulders, typing on the computer
and writing reports with few breaks. She noted that her pain and discomfort began on
October 22, 2005 and that she had sought treatment for episodes of neck pain beginning in 2004.
Dr. Rodolfo D. Eichberg, a physician Board-certified in physical medical and
rehabilitation, completed a note on October 24, 2005. He described appellant’s onset of pain
three days earlier as she was getting out of bed. Dr. Eichberg diagnosed acute cervical strain.
He reviewed appellant’s magnetic resonance imaging (MRI) scan on November 4, 2005 and
found a central disc herniation at C5-6. Dr. Eichberg stated: “It is definitely worse that it was on
a previous MRI [scan] of February of 2004.” In reports dated November 30, 2005, he again
diagnosed a central disc herniation at C5-6. Dr. Eichberg indicated that appellant’s condition
commenced on October 22, 2005 and that he expected the condition to continue through
October 22, 2006. He did not offer an opinion regarding the cause of appellant’s diagnosed
condition. Dr. Eichberg recommended surgery.
In a statement dated December 20, 2005, appellant again attributed her cervical disc
herniation to repetitive movements at work. She implicated reaching for the telephone across her
desk, cradling the telephone between her neck and shoulders, typing on a computer for extended
periods of time and writing reports with few breaks. Appellant noted in 2000 she was diagnosed
with a herniated disc at L4, L5-S1. Appellant stated that she had not undergone any back
surgery or treatment for other injuries.
Appellant submitted treatment notes from Dr. Eichberg beginning on March 2, 2000
addressing her low back pain. On January 30, 2004 Dr. Eichberg mentioned that appellant was
experiencing occasional neck pain with periscapular radiation. He reviewed appellant’s
MRI scan on April 23, 2004 and found that she had reversal of the normal cervical lordosis with
mild spondylosis at C5-6 and no evidence of focal disc herniation or spinal stenosis. In a note
dated July 8, 2004, Dr. Eichberg reported appellant’s complaints of severe neck pain and
stiffness two weeks earlier. He stated that appellant was not sleeping well due to her neck pain.

2

By decision dated January 10, 2006, the Office denied appellant’s claim finding that the
medical evidence did not establish that her cervical condition was related to her employment
duties.1
Appellant requested a review of the written record from the Branch of Hearings and
Review on February 10, 2006. By decision dated June 12, 2006, the Branch of Hearings and
Review denied appellant’s request for a review of the written record as untimely. The hearing
representative noted that appellant’s request was postmarked more that 30 days after the Office’s
January 10, 2006 decision. The hearing representative further found that the case could equally
well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
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 of existence of a the disease or condition for which compensation is claimed; (2) a
factual statement identifying the 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
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion 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.2
ANALYSIS -- ISSUE 1
In support of her occupational disease claim, appellant submitted evidence from
Dr. Eichberg, a physician Board-certified in physical medical and rehabilitation. He diagnosed a
herniated disc at C5-6. Appellant alleged that she developed this herniated disc due to her
employment duties of working at a computer, answering the telephone and completing reports as
well as due to the wear and tear of working prolonged periods. The evidence of record is
sufficient to establish that she performed such duties in her federal employment. However,
appellant has failed to provide sufficient medical evidence establishing a causal relationship
between her diagnosed cervical condition to her employment duties. None of the reports from
Dr. Eichberg address the cause of appellant’s herniated disc. He noted that appellant had
experienced neck pain as early as January 30, 2004. The MRI scan in the spring of that year
demonstrated reversal of the normal cervical lordosis with mild spondylosis at C5-6 and no
evidence of focal disc herniation or spinal stenosis. Appellant sought treatment for her neck
again on July 8, 2004. In the first report following appellant’s most recent onset of neck pain,
October 22, 2005, Dr. Eichberg merely noted that this onset occurred at home. He did not
mention the employment factors to which appellant attributed her condition or offer any opinion
regarding the relationship between these factors and appellant’s diagnosed herniated disc. There
1

Following the Office’s January 10, 2006 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

3

is no opinion from Dr. Eichberg which addresses how appellant’s work caused or contributed to
her diagnosed condition. Without the essential medical opinion evidence regarding the causal
relationship between appellant’s condition and her employment, appellant has failed to meet her
burden of proof. The Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees Compensation Act provides in pertinent
part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary … is entitled, on request made
within 30 days after the date of issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”3
The claimant can choose between two formats: an oral hearing or a review of the written
record.4 The requirements are the same for either choice.5 The Board has held that section
8124(b)(1) is “unequivocal” in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking6 and before the claimant has requested reconsideration.7
However, when the request is not timely filed or when reconsideration has previously been
requested, the Office may within its discretion, grant a hearing or review of the written record
and must exercise this discretion.8
ANALYSIS -- ISSUE 2
The Office issued its decision on appellant’s claim on January 10, 2006. Appellant
requested a review of the written record in a form postmarked February 10, 2006. This form was
postmarked 31 days after the issuance of the Office’s decision. As the request for a review of the
written record was not timely postmarked within the 30 day period, appellant is not entitled to a
review of the written record as a matter of right. Furthermore, in denying appellant’s request for
a review of the written record, the hearing representative properly exercised his discretion and
found that appellant’s claim could equally well be addressed through the submission of
additional evidence in the reconsideration process. As appellant’s request for a review of the
written record was untimely and as the hearing representative exercised his discretion in denying
the request, the Board finds that this denial was proper.
3

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Claudio Vazquez, 52 ECAB 496, 499 (2001).

6

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).

7

Martha A. McConnell, 50 ECAB 129, 130 (1998).

8

Id.

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CONCLUSION
The Board finds that appellant has not submitted medical evidence to establish a causal
relationship between her diagnosed herniated cervical disc condition and her federal employment
duties. Appellant has failed to meet her burden of proof in establishing an occupational disease
claim. The Board further finds that appellant’s request for a review of the written record was
untimely and that the Branch of Hearings and Review properly exercised its discretion in
denying her request.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 12 and January 10, 2006 are affirmed.
Issued: February 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE, NEW
YORK INTERNATIONAL SERVICE CENTER
Jamaica, NY, Employer
__________________________________________

)
)
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)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1595
Issued: March 13, 2019

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 August 17, 2018 appellant, through counsel, filed a timely appeal from a July 10, 2018
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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include the additional conditions of post-traumatic headaches,
dizziness, post-traumatic vestibulopathy, postconcussion syndrome, and cervical radiculopathy
casually related to the accepted December 5, 2014 employment injury.
FACTUAL HISTORY
On December 5, 2014 appellant, then a 52-year-old postal police officer, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she was injured in a motor vehicle accident,
while in the performance of duty, when a livery cab struck her postal vehicle. She alleged that she
struck her left temple on the window frame of her vehicle.
Appellant provided a note from Dr. Lee Berk, an internist, dated December 5, 2014
diagnosing thoracic strain and concussion with no loss of consciousness. On December 5, 2014
she underwent a computerized tomography (CT) scan of her head which demonstrated no evidence
of acute intracranial hemorrhage or displaced fracture.
In a December 15, 2014 development letter, OWCP requested additional factual and
medical evidence in support of appellant’s traumatic injury claim. It afforded her 30 days for a
response.
On December 20 and 27, 2014 Dr. Afshan Khan, a Board-certified neurologist, diagnosed
vertigo, postconcussion syndrome, headaches, and myofascial pain syndrome due to the
December 5, 2014 motor vehicle accident. In a January 12, 2015 note, he also diagnosed posttraumatic vestibulopathy, cervical radiculopathy, and cervical myofascial pain syndrome.
By decision dated January 21, 2015, OWCP denied appellant’s traumatic injury claim,
finding that she had not established that the December 5, 2014 employment incident occurred as
alleged. On February 10, 2015 appellant requested a review of the written record from an OWCP
hearing representative.
On January 28, 2015 appellant provided a narrative description of the events of
December 5, 2014. She noted that, along with a fellow police officer, she was returning to the
employing establishment after responding to a burglar alarm. Appellant’s fellow officer was
driving the vehicle and she was in the front passenger seat. Another vehicle struck her vehicle
causing it to spin out of control and hit a metal divider. Appellant’s right temple hit the door panel
molding between the passenger side window and the windshield. She did not lose consciousness,
but experienced swelling and severe pain in her right temple. Appellant was transported to the
hospital by ambulance. She also provided a copy of the accident report and an incident report.
On December 5, 2014 Dr. Zong W. Chen, a physician Board-certified in emergency
medicine, examined appellant following the motor vehicle accident and diagnosed head contusion
following right-side temple trauma without loss of consciousness.

2

On January 17, 2015 appellant underwent a cervical CT scan which demonstrated loss of
lordosis, degenerative changes, and disc herniations at C2-3 and C4-5. She also underwent a brain
magnetic resonance imaging (MRI) scan which demonstrated lacunar infarct or ischemic changes.
In a note dated February 9, 2015, Dr. Khan reported that appellant sustained injuries as a
restrained front seat passenger. He described the motor vehicle accident and noted that she struck
her right temple on the window frame as her body was jerked sideways. Dr. Khan diagnosed posttraumatic headaches and dizziness, post-traumatic vestibulopathy, post-concussion syndrome,
cervical radiculopathy, and lacunar infarct.
By decision dated October 13, 2015, OWCP’s hearing representative vacated OWCP’s
January 21, 2015 decision and accepted appellant’s claim for head contusion. She also remanded
the case for further development of the additional conditions diagnosed by Dr. Khan including
referral of the medical records to an OWCP district medical adviser (DMA). On November 16,
2015 OWCP informed appellant that her traumatic injury claim had been accepted for head
contusion.
On January 15, 2016 Dr. Jon Glass, a Board-certified neurologist and DMA, reviewed a
statement of accepted facts (SOAF), the medical evidence, and OWCP’s questions regarding
appellant’s additional diagnoses. He opined that none of the diagnoses provided by Dr. Khan were
employment related as there was no medical evidence supporting these conditions after
February 9, 2015 or as of November 16, 2015 when OWCP accepted her traumatic injury claim.
Dr. Glass indicated that appellant’s symptoms from a concussion should have resolved within six
to eight weeks and cervical spine trauma should have resolved within three-to-four months.
By decision dated March 15, 2016, OWCP denied expansion of the acceptance of
appellant’s traumatic injury claim to encompass conditions other than head contusion.
On March 15, 2017 appellant, through counsel, requested reconsideration of the March 15,
2016 OWCP decision. She disagreed with the DMA’s findings noting that he only addressed
whether her diagnosed conditions should have resolved and not whether the conditions were
causally related to the December 5, 2014 employment injury. Counsel contended that the DMA’s
reasoning was faulty and based solely on the finding that as there was no medical evidence after a
certain date, appellant must not have ever had the additional conditions. He contended that a
second opinion referral was appropriate. Appellant also provided additional medical evidence.
In his March 15, 2017 report, Dr. Khan opined that post-concussion syndrome did not
always resolve within six-to-eight weeks. He noted that the medical literature supported that
chronic postconcussion syndromes were possible. Dr. Khan found that appellant’s symptoms had
not resolved by February 9, 2015. Appellant continued to experience headaches through June 30,
2015, but was allowed to carry a firearm. Dr. Khan had released her to return to work on
August 5, 2015.
By decision dated April 12, 2017, OWCP denied modification of the March 15, 2016
OWCP decision.
In a report dated September 1, 2017, Dr. Morton Finkel, a Board-certified neurologist,
noted appellant’s history of injury on December 5, 2014 in a motor vehicle accident while at work.
3

He reported that the right side of her head hit the vehicle door. Dr. Finkel noted that appellant
continued to experience headaches and that her MRI scan demonstrated a basal ganglia infarct.
He diagnosed cerebral contusion.
On August 10 and September 12, 2017 Dr. Isaiah Pinckney, II, a family practitioner,
examined appellant due to headache and neck pain. He noted her history of a motor vehicle
accident during which she struck the right side of her head. Dr. Pinckney reviewed appellant’s
cervical CT scan and diagnosed bulging cervical disc, contusion of the head, and postconcussion
syndrome. He opined that these conditions were causally related to her work accident.
Dr. Pinckney concluded that appellant’s accident was the competent producing cause of her
injuries and the need for further treatment.
In a February 16, 2018 note, Dr. Finkel diagnosed cerebral contusion.
On April 12 2018 appellant, through counsel, requested reconsideration of OWCP’s
April 12, 2017 decision. She provided reports dated September 10, 2017 and April 20, 2018 from
Dr. Finkel. Dr. Finkel described appellant’s December 5, 2014 motor vehicle accident which
resulted in her striking her head. He reviewed Dr. Kahn’s reports and found that she had persistent
headaches and dizziness for four months after her accepted injury. Dr. Finkel opined that the
accident of December 5, 2014 was the competent producing cause of appellant’s cerebral
contusion and cerebral concussion, vertigo due to vestibulopathy, and cervical radiculopathy. He
found that her conditions had not resolved by February 9, 2015. Dr. Finkel disagreed with the
DMA that a concussion typically resolves within six-to-eight weeks and found that appellant had
experienced headache and dizziness for several months.
By decision dated July 10, 2018, OWCP denied modification of the March 15, 2016
decision, finding that appellant had not submitted sufficient medical evidence to establish causal
relationship between her December 5, 2014 employment injury and her diagnosed conditions of
post-traumatic headaches, dizziness, post-traumatic vestibulopathy, post-concussion syndrome,
and cervical radiculopathy.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that 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.4
These are the essential elements of each and every compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5

3

Id.

4

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6 To establish causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.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.8
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.9
While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence and to see that justice is done.10
ANALYSIS
The Board finds that this case is not in posture for a decision.
On October 13, 2015 OWCP’s hearing representative accepted appellant’s claim for head
contusion. She also remanded the case for OWCP to undertake development of the medical
evidence regarding the additional conditions alleged by appellant as employment related. The
hearing representative directed OWCP to refer the case record to a DMA for review. OWCP
referred the medical evidence, a SOAF, and a list of questions to Dr. Glass, a Board-certified
neurologist and DMA. On January 15, 2016 Dr. Glass opined that none of the diagnoses provided
by Dr. Khan were employment related as there was no medical evidence supporting these
conditions after February 9, 2015 or as of November 16, 2015. He indicated that appellant’s
symptoms from a concussion should have resolved within six-to-eight weeks and cervical spine
trauma should have resolved within three-to-four months. Dr. Glass did not provide a coherent
basis for his opinion that the additional claimed conditions were not causally related to her
accepted employment injury. He indicates both that the diagnosed conditions were causally related
to appellant’s accepted employment injury as she was initially diagnosed with head and cervical
injuries, but also that the additional diagnosed conditions were not causally related to her
December 5, 2014 employment injury because these conditions had largely resolved by the time
OWCP accepted her claim. This opinion did not clearly address whether the motor vehicle
accident and resulting head injury had resulted in additional medical conditions such as post6

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

See S.A., Docket No. 18-0399 (issued October 16, 2018).

8

See P.M., Docket No. 18-0287 (issued October 11, 2018).

9

F.H., supra note 4.

10
J.S., Docket No. 16-0777 (issued January 3, 2017); Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A.
Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

traumatic headaches, dizziness, post-traumatic vestibulopathy, post-concussion syndrome, and
cervical radiculopathy at the time of or following the December 5, 2014 employment injury.
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.11 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.12 When OWCP undertakes to develop the evidence it has an obligation to seek
clarification from its physician upon receiving a report that did not adequately address the issues
that OWCP sought to develop.13 As such, it should obtain a clear and rationalized supplemental
opinion from Dr. Glass with regard to appellant’s request for expansion of the acceptance of her
claim to include additional employment-related conditions. Thus, the Board will remand the case
to OWCP to obtain a supplemental report from the DMA, providing a rationalized medical opinion
as to whether her additional conditions are causally related to the employment injury regardless of
whether they are ongoing conditions or whether they have resolved. Following this and any other
development deemed necessary, OWCP shall issue a de novo decision on whether appellant
sustained additional conditions causally related to the December 5, 2014 employment injury.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

J.S., id.; Vanessa Young, 56 ECAB 575 (2004).

12

Supra note 10.

13

S.C., Docket No. 17-1587 (issued January 2, 2019); E.B., Docket No. 17-0795 (issued January 18, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: March 13, 2019
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

7