United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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Appearances:
Carlos M. Morcate, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1149
Issued: December 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2009 appellant filed a timely appeal from a March 6, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established she sustained an injury in the performance of
duty on November 21, 2008.
FACTUAL HISTORY
On January 20, 2009 appellant, a 65-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that she sustained paraspinal muscular strain which she attributed to a
November 11, 2008 incident when her supervisor allegedly accused her of “being tardy from
[her] lunch [break].” She alleged that this incident caused her to become “really emotional and
upset” such that she experienced cramping in her neck, “loss of breath and very hot.”

On February 3, 2009 the Office notified appellant that the evidence of record was
insufficient to establish her claim. It advised that she needed to submit additional evidence and
provided guidance concerning the type of evidence required to establish her claim.
Appellant submitted medical notes and an unsigned hospital discharge report concerning
treatment for cervical paraspinal muscular strain. She also submitted a grievance appeal form
dated December 20, 2008 concerning a union grievance with the employing establishment.
Appellant submitted statements from two coworkers who observed her condition on the
day in question as well as a statement, dated January 15, 2008, in which appellant related several
incidents illustrating the complaints she has concerning her supervisor. She also described the
events of November 21, 2008. The Office received this evidence on March 6, 2009.
By decision dated March 6, 2009, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that the incident occurred as alleged.1 It noted
that she never responded to its February 3, 2009 letter, which advised her of the deficiencies in
her claim and gave her an opportunity to provide the necessary evidence.
LEGAL PRECEDENT
The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at
the time of its final decision.2 As the Board’s decisions are final with regard to the subject
matter appealed, it is crucial that the Office consider all relevant evidence that was properly
submitted prior to the issuance of its final decision.3
ANALYSIS
The Board finds that this case is not in posture for decision.
The Office’s March 6, 2009 decision denied appellant’s claim because the evidence of
record was insufficient to establish that the alleged employment incident occurred as alleged. It
stated that appellant never responded to its February 3, 2009 letter, which advised her of the type
of factual and medical evidence needed to establish her claim.

1

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.) As this evidence was not part of
the record when the Office issued either of its prior decisions, the Board may not consider it for the first time as part
of appellant’s appeal.
2

20 C.F.R. § 501.2(c).

3

See Kenneth R. Love, 50 ECAB 193 (1998). See also William A. Couch, 41 ECAB 548 (1990) and Linda
Johnson, 45 ECAB 439 (1994).

2

In William A. Couch, the Board stated:
“The Federal Employees’ Compensation Act provides that the Office shall
determine and make findings of fact in making an award for or against payment of
compensation after considering the claim presented by the employee and after
completing such investigation as the Office considers necessary with respect to
the claim. Since the Board’s jurisdiction of a case is limited to reviewing that
evidence which was before the Office at the time of its final decision, it is
necessary that the Office review all evidence submitted by a claimant and
received by the Office prior to issuance of its final decision. As the Board’s
decisions are final as to the subject matter appealed, it is critical that all evidence
relevant to that subject matter which was properly submitted to the Office prior to
the time of issuance of its final decision be addressed by the Office.”4
On March 6, 2009 the same day that it issued its decision rejecting appellant’s claim the Office
received statements from two coworkers who witnessed appellant’s condition on the date in
question and appellant’s January 15, 2008 statement, further describing the circumstances of her
November 21, 2008 incident and complaints concerning her supervisor. By stating that no
evidence was received in response to its February 3, 2006 inquiry, the Office’s March 6, 2009
decision makes clear that this evidence was not reviewed. Because this evidence was received
but not reviewed by the Office in rejecting appellant’s claim, the case must be remanded for a
proper review of the evidence and an appropriate final decision on appellant’s entitlement to
compensation.5
CONCLUSION
The Board finds that this case is not in posture for decision.

4

41 ECAB 548 (1990).

5

Linda Johnson, supra note 3 (evidence received the same day as the date the Office issues its final decision must
be considered).

3

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: December 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Benton, IL, Employer
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__________________________________________ )
D.M., Appellant

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

Docket No. 07-1815
Issued: December 20, 2007

Case Submitted on the Record

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

JURISDICTION
On June 28, 2007 appellant filed a timely appeal of an April 17, 2007 merit decision of
the Office of Workers’ Compensation Programs finding that he had no more than an 11 percent
impairment of the right lower extremity, for which he received a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule
award case.
ISSUE
The issue is whether appellant has more than an 11 percent impairment of the right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On December 16, 2005 appellant, then a 31-year-old deputy marshal, filed a traumatic
injury claim. He alleged that on December 15, 2005 he broke his right ankle when he slipped
and fell as he left a prison cell after breaking up a fight between two inmates. By letter dated
February 24, 2006, the Office accepted the claim for a closed fractured medial malleus and

authorized right ankle surgery which was performed on December 29, 2005 by Dr. Kenneth T.
Tuan, a Board-certified orthopedic surgeon.
In an April 14, 2006 work capacity evaluation, Dr. Tuan stated that appellant could return
to his usual work duties with no restrictions. In an April 26, 2006 treatment note, he stated that
appellant was doing well following ankle surgery and that he had returned to work during the
previous week. Dr. Tuan reported essentially normal findings on physical examination. He
opined that appellant had reached maximum medical improvement, noting that he demonstrated
an ability to perform full work duties. On April 26, 2006 Dr. Tuan released him from his
medical care.
On June 25, 2006 appellant filed a claim for a schedule award.
By letter dated July 28, 2006, the Office requested that Dr. Tuan determine the extent of
appellant’s permanent impairment of the right ankle due to the December 15, 2005 employmentrelated injury based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
In an August 16, 2006 treatment note, Dr. Tuan reported negative 5 degrees of
dorsiflexion, 30 degrees of plantar flexion, 10 degrees of inversion and 5 degrees of eversion. In
this treatment note, as well as in an August 17, 2006 report, he opined that appellant sustained a
20 percent impairment of the right lower extremity. In the August 17, 2006 report, Dr. Tuan
stated that appellant reached maximum medical improvement on April 26, 2006.
On February 11, 2007 Dr. Benjamin P. Crane, an Office medical adviser, reviewed
appellant’s case record, including Dr. Tuan’s report and medical treatment. He determined that
negative 5 degrees of dorsiflexion constituted a seven percent impairment of the right lower
extremity and 30 degrees of plantar flexion constituted a zero percent impairment of the right
lower extremity (A.M.A., Guides 537, Table 17-11). Dr. Crane further determined that 10
degrees of inversion constituted a two percent impairment of the right lower extremity and 5
degrees of eversion also constituted a two percent impairment of the right lower extremity
(A.M.A., Guides 537, Table 17-12). He added his range of motion impairment ratings to
determine that appellant sustained an 11 percent impairment of the right lower extremity.
Dr. Crane concluded that appellant reached maximum medical improvement on August 17, 2006
the date that he was released to work without restrictions.
By decision dated April 17, 2007, the Office granted appellant a schedule award for an 11
percent impairment of the right lower extremity based on Dr. Crane’s February 11, 2007 opinion.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 sets forth the number of weeks of compensation to be paid for
1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

2

permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.5
ANALYSIS
The Office accepted that appellant sustained a closed fractured medial malleus of the
right ankle on December 15, 2005. Dr. Tuan, an attending physician, provided an impairment
rating, noting that appellant had negative 5 degrees of dorsiflexion, 30 degrees of plantar flexion,
10 degrees of inversion and 5 degrees of eversion. He opined that appellant sustained a 20
percent impairment of the right ankle. However, Dr. Tuan failed to identify which tables and
figures of the A.M.A., Guides were used to determine the percentage of impairment to
appellant’s right lower extremity. The Board, therefore, finds that Dr. Tuan’s report is
insufficient to establish that appellant sustained more than an 11 percent impairment of the right
lower extremity.
Dr. Crane, an Office medical adviser, reviewed the findings of Dr. Tuan and applied the
A.M.A., Guides. He determined that negative 5 degrees of dorsiflexion constituted a seven
percent impairment of the right lower extremity and 30 degrees of plantar flexion was not a
ratable impairment (A.M.A., Guides 53, Table 17-11). Dr. Crane further determined that 10
degrees of inversion and 5 degrees of eversion each constituted a two percent impairment of the
right lower extremity (A.M.A., Guides 537, Table 17-12). He added the range of motion
impairments to determine that appellant sustained a total 11 percent impairment of the right
lower extremity.
Dr. Crane properly applied the A.M.A., Guides and provided rationale for rating an 11
percent impairment of the right lower extremity. The Board finds that Dr. Crane’s opinion
represents the weight of the medical evidence of record. Appellant has no more than an 11
percent impairment of the right lower extremity.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

3

CONCLUSION
The Board finds that appellant failed to establish that he has more than an 11 percent
impairment to the right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2007
Washington, DC

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

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

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

4


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

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

Docket No. 08-244
Issued: June 16, 2008

Case Submitted on the Record

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

JURISDICTION
On November 1, 2007 appellant, through counsel, filed a timely appeal from a decision
of the Office of Workers’ Compensation Programs’ hearing representative dated December 11,
2006 affirming the termination of appellant’s compensation benefits. She also appeals an
April 30, 2007 decision denying her request for a merit review. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 14, 2006 for the accepted conditions of right upper
extremity epicondylitis and tendinitis; (2) whether appellant met her burden of proof to establish
that she had any continuing disability or condition after May 14, 2006, causally related to her
accepted employment injuries; (3) whether the Office properly denied further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On October 26, 2002 appellant, then a 37-year-old mail processor, filed a traumatic injury
claim alleging that she sustained right carpal tunnel syndrome due to putting mail into trays on
October 24, 2002. The Office accepted the claim for right upper extremity epicondylitis and
tendinitis. Appellant stopped work on October 25, 2002 and was placed on the periodic rolls for
temporary total disability.
In chart notes dated April 26, 2004 to September 15, 2005, Dr. Scott Fried, a treating
Board-certified orthopedic surgeon, diagnosed lateral epicondylitis with radial tunnel greater on
the right side than the left, bilateral upper extremities repetitive strain injury, brachial plexus
greater on the right side than on the left and moderate inflammatory process due to repetitive
strain injury and possible arthralgia. Dr. Fried concluded that appellant continued to be totally
disabled due to her employment injuries.
On April 25, 2005 the Office referred appellant to Dr. Anthony W. Salem, a Boardcertified orthopedic surgeon, to determine appellant’s work capability and whether her bilateral
diffuse sensory brachial plexopathies were due to the October 24, 2002 employment injury. On
May 24, 2005 Dr. Salem opined that appellant had no disability or residuals as a result of her
October 24, 2002 employment injury. He noted that she had multiple complaints that predated
the injury. In an attached work capacity evaluation form (OWCP-5c), Dr. Salem indicated that
appellant had no restrictions and was capable of performing her usual job.
On August 26, 2005 the Office referred appellant to Dr. Thomas DiBenedetto, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Fried and Dr. Salem.
On September 23, 2005 Dr. DiBenedetto reviewed the medical evidence, statement of
accepted facts and set forth findings on physical examination. He concluded that appellant’s
right lateral epicondylitis had resolved. Dr. DiBenedetto noted that she had vague complaints of
right elbow pain, but no tenderness over the lateral epicondyle. A physical examination revealed
“decreased sensation in the ulnar three digits,” negative Phalen’s and Tinel’s tests at both the
elbow and wrist, “tenderness over extensor musculature,” bilateral trapezius and posterior neck
pain, no paraspinal spasm, “pain over her extensor musculature with resisted extension,” and full
range of motion in the neck and bilateral upper extremity joints. Dr. DiBenedetto also found no
hard objective findings to support the diagnosis of bilateral brachial plexopathies. He noted that
no mention of any bilateral brachial plexus lesion had been made until Dr. Fried began treating
appellant and that she had normal EMG and nerve conduction study testing. Dr. DiBenedetto
stated that he found no evidence of any continuing lateral epicondylitis or any physical evidence
of bilateral brachial plexopathies. He concluded that appellant had no residuals of her accepted
employment injury and was not disabled from working.
In a November 10, 2005 report, Dr. Fried and Dana Steiner, PAC, reported that appellant
experienced an increase in her pain symptoms with tingling and numbness bilaterally in the third
to fifth digits.

2

By decision dated March 17, 2006, the Office denied appellant’s claim of bilateral
brachial plexopathies.
On March 29, 2006 the Office issued a notice of proposed termination of benefits. By
decision dated May 11, 2006, the Office finalized the termination of appellant’s compensation
effective May 14, 2006. The Office found the weight of the evidence rested with the opinion of
Dr. DiBenedetto, the impartial medical examiner, who concluded that appellant no longer had
any residuals due to her accepted October 24, 2002 employment injury.
In a letter dated May 16, 2006, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on October 16, 2006. The Office received an
April 26, 2006 report by Dr. Fried who opined that appellant continued to have residuals of her
accepted employment injury.
In a May 1, 2006 report, Dr. Fried detailed appellant’s treatment and her medical and
employment history. He reviewed the reports of Drs. DiBenedetto and Salem, and reiterated the
diagnoses of lateral epicondylitis with radial tunnel greater on the right side than the left,
bilateral upper extremities repetitive strain injury, brachial plexus greater on the right side than
on the left and moderate inflammatory process due to repetitive strain injury and possible
arthralgia. He noted his disagreement with the reports of Drs. DiBenedetto and Salem. A
May 25, 2006 electromyographic evaluation performed by Richard L. Read, physical therapist
reported bilateral of mild upper brachial plexus, bilateral ulnar nerve and radial compromise,
more severe on the right medial and dorsal elbow levels and moderate on the left with the
remainder of the tests reported as normal.
In a decision dated December 11, 2006, the Office hearing representative affirmed the
May 11, 2006 decision terminating appellant’s compensation. He found the report of the
impartial medical examiner, Dr. DiBenedetto, constituted the special weight of the medical
evidence in establishing that appellant’s accepted employment injury had resolved.
On April 12, 2007 appellant’s counsel requested reconsideration and submitted a
January 27, 2006 report from Dr. Fried, who reported appellant was “tender across the bilateral
trap[eziu]s with spasm” and “Roos testing reproduces pain at the right greater than the left plexus
with unchanged dyesthesia into all digits.” Dr. Fried also reported positive right radial forearm
with compression testing and positive ulnar Tinel’s sign.
He noted that a recent
electromyography revealed “progression at both the ulnar and radial nerves, as well as ongoing
bilateral brachial plexopathy.”
By nonmerit decision dated April 30, 2007, Office denied appellant’s request for
reconsideration of the December 11, 2006 decision on the grounds that the evidence submitted
was repetitious.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.2
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.3 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.5 It is well established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for upper extremity epicondylitis and tendinitis
and placed her on the periodic rolls. The Office has the burden of justifying the termination of
appellant’s compensation for these medical conditions.
In order to resolve the conflict in the medical evidence between appellant’s treating
physician, Dr. Fried, and Dr. Salem, the second opinion physician, the Office referred the case to
an impartial medical specialist, Dr. DiBenedetto, who concluded, in his September 23, 2005
report that the accepted conditions of right upper extremity epicondylitis and tendinitis stemming
from her October 24, 2002 work injury had resolved. In support of this conclusion,
Dr. DiBenedetto noted that he found no evidence of any continuing lateral epicondylitis. A
physical examination revealed negative Phalen’s and Tinel’s signs at both the wrist and elbow
and “no tenderness over the lateral epicondylitis.” The Office relied on Dr. DiBenedetto’s
opinion in its May 11, 2006 decision which found that appellant had no residuals or continuing
disability stemming from her October 24, 2002 work injury and was therefore not entitled to
compensation or medical benefits.

1

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006); George A. Rodriguez, 57 ECAB
224 (2005).
2

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Elaine Sneed, 56 ECAB 373 (2005).

3

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

4

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53 ECAB 155 (2001).

6

J.M., supra note 2.

4

The Board finds that Dr. DiBenedetto’s impartial medical opinion establishes that
appellant’s accepted conditions resolved without continuing disability or any residuals from her
accepted October 24, 2002 employment injury. His opinion is sufficiently probative,
rationalized and based upon a proper factual background. Therefore, the Office properly
accorded Dr. DiBenedetto’s opinion as the special weight of an impartial medical examiner.7
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 14, 2006.
On appeal appellant’s attorney contends that the Office should have expanded the
acceptance of appellant’s claim to include brachial plexopathy. He also contends that
Dr. DiBenedetto’s report is equivocal on this matter or there is an unresolved conflict between
Dr. DiBenedetto and Dr. Fried on this issue. For conditions not accepted by the Office as being
employment related, it is appellant’s burden to provide rationalized medical evidence sufficient
to establish causal relation, not the Office’s burden to disprove any such relationship.8 Dr. Fried
diagnosed bilateral brachial plexus in his various reports. However, he provided no rationale
explaining how this condition was caused or aggravated by appellant’s employment injury. The
Board has held that medical reports unsupported by medical rationale are of limited probative
value.9 Similarly, Dr. DiBenedetto’s opinion is also insufficient to support appellant’s claim. He
concluded that there was no hard objective findings to support the diagnosis of bilateral
plexopathies and noted that the condition was not diagnosed until appellant was treated by
Dr. Fried. Dr. DiBenedetto also noted that such condition had not been accepted by the Office.
The report of the impartial specialist does not support appellant’s assertion that her bilateral
brachial plexus condition is employment related.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.10 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. 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
appellant’s diagnosed condition and the implicated employment factors.11 The opinion of the
7

Darlene R. Kennedy, 57 ECAB 414 (2006).

8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

T.F., supra note 1.

10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
11

Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

physician must be based on a complete factual and medical background of appellant, 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 appellant.12
ANALYSIS – ISSUE 2
After the Office properly terminated appellant’s compensation in its May 11, 2006
decision, the burden of proof shifted to appellant to establish continuing employment-related
disability.13 Appellant submitted a May 1, 2006 report by Dr. Fried and a May 25, 2006
electromyographic evaluation performed by Mr. Read, physical therapist. Dr. Fried noted his
disagreement with the reports of Drs. Salem and DiBenedetto and opined that appellant
continued to have residuals from her accepted lateral epicondylitis. However, Dr. Fried was on
one side of the conflict which was resolved by Dr. DiBenedetto. His May 1, 2006 report is
essentially duplicative of his prior reports on whether appellant continues to have residuals from
the accepted conditions which helped to create the conflict and would be insufficient to give rise
to a new conflict or otherwise show that the termination was improper.14 The May 25, 2006
electromyographic report by Mr. Read, physical therapist is insufficient to create a conflict as
Accordingly, the Board finds that
Mr. Read is not a physician under the Act.15
Dr. DiBenedetto’s opinion constituted the special weight of medical opinion, supports the
Office’s May 11, 2006 decision to terminate appellant’s compensation and deny any entitlement
to continuing disability based on the accepted conditions of upper extremity epicondylitis and
tendinitis.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,16 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.17 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.18 When a claimant fails to

12

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

13

Joseph A. Brown, Jr., supra note 10.

14

M.S., 58 ECAB ___ (Docket No. 06-797, issued January 31, 2007).

15

David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the Act).
16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(1)-(2). See Susan A. Filkins, 57 ECAB 630 (2006).

18

Id. at § 10.607(a).

6

meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review of the merits.19
ANALYSIS -- ISSUE 3
The Board finds that appellant’s request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law. With
regard to the evidence submitted with her request, she submitted a new report dated January 27,
2006 by Dr. Fried. This report generally reiterates Dr. Fried’s prior opinion that appellant’s
bilateral brachial plexus is employment related. The Board has held that evidence that repeats or
duplicates that already of record does not constitute a basis for reopening a claim for merit
review.20
Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously considered by the Office, nor argued that the Office erroneously
interpreted a specific point of law. Thus, she has not met the criteria to have the Office reopen
her case for review on the merits.21
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective May 14, 2006 on the grounds that she no longer had any residuals or disability causally
related to her accepted right upper extremity epicondylitis and tendinitis. The Board also finds
that appellant has failed to establish that she had any employment-related residuals or disability
after May 14, 2006 due to her accepted right upper extremity epicondylitis and tendinitis. The
Board further finds the Office properly denied her request for a merit review.

19

20 C.F.R. § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements the Office will deny the application
for review without reviewing the merits of the claim).
20

See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).
21

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on the merits).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 30, 2007 and December 11, 2006 be affirmed.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Panorama City, CA, Employer
__________________________________________

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

Docket No. 17-2019
Issued: August 24, 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 September 28, 2017 appellant filed a timely appeal from the June 22, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that his bilateral hip
conditions are causally related to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 31, 2015 appellant, then a 51-year-old city carrier, filed an occupational
disease claim (Form CA-2), alleging that his bilateral hip pain had worsened over time.2 Appellant
stated that he worked over 28 years as a city carrier, during which time he engaged in squatting,
bending, pushing, and lifting of parcels and postal equipment of varying weights six to eight hours
a day, five days a week. He indicated that he first became aware of his claimed condition and its
relation to his federal employment on June 1, 2015.3 Appellant did not stop work.
In a December 31, 2015 supplemental statement, appellant indicated that for the last six
years he had been using a hip satchel to carry mail. He explained that he carried 10 to 35 pounds
in the satchel on a daily basis while delivering mail on a walking route. Appellant described his
route, which required walking six to eight miles a day, five days a week.
By development letter dated January 15, 2016, OWCP advised appellant of the deficiencies
in his claim. It requested additional evidence, including a rationalized report from a physician
explaining how his employment activities caused, contributed to, or aggravated any diagnosed
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an October 29, 2015 report, Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon,
referenced OWCP File No. xxxxxx451 on his report and reported a history of injury that occurred
in 2011, when appellant pulled a tray from the rear of the vehicle forward and experienced pain in
his right lower back with pain radiating into his right leg. He diagnosed multilevel degenerative
disc disease, lumbar spine with sciatica and early degenerative arthritis, bilateral hips. Dr. Tauber
opined that the bilateral hip conditions should be accepted. He noted that appellant had performed
prolonged standing, walking, bending, twisting, stooping, and climbing as a mail carrier and stated
that it would be inconceivable for appellant to carry out those duties without some industrial
contribution to his hips.
Another copy of Dr. Tauber’s October 29, 2015 report was provided. This report had the
OWCP file number blanked out, with the current claim file number handwritten.
By decision dated February 16, 2016, OWCP denied appellant’s claim as he had not
established that he sustained an injury causally related to the accepted work factors. It noted that
there was no discussion from Dr. Tauber which detailed the mechanism of injury.4

2

The present claim was assigned OWCP File No. xxxxxx380.

3

Under OWCP File No. xxxxxx451, OWCP accepted that on March 29, 2011 appellant sustained a lumbar back
sprain and displacement of lumbar intervertebral disc without myelopathy.
4
OWCP found that the medical documentation from Dr. Tauber detailed a mechanism of injury identical to
appellant’s claim in OWCP File No. xxxxxx451.

2

OWCP thereafter received February 8, 2016 magnetic resonance imaging (MRI) scan
reports of the left and right hip, which indicated findings consistent with degeneration.5
On March 10, 2016 appellant requested reconsideration.
In a March 3, 2016 report, Dr. Tauber referenced OWCP File No. xxxxxx451, with a date
of injury of March 29, 2011. He noted that appellant had significant pathology in both hips and
significant degenerative disease in the lumbar spine with disc pathology. As confirmed on MRI
scan, Dr. Tauber indicated that appellant has labral degeneration and early degenerative arthritis
of the left hip and degenerative arthritis of the right hip. He opined that both hip conditions were
work related. Dr. Tauber further indicated that appellant had done extensive walking, lifting, and
bending as a postal worker for 28 years. He stated that it was inconceivable that a person could
carry out appellant’s employment activities and not have any contribution to the degeneration of
his hips. Dr. Tauber noted that, while all activities of daily living would contribute to this as well,
appellant carried out prolonged walking and climbing, lifting, bending, and stooping which,
without question, contributed to his bilateral hip findings. A duplicate copy of Dr. Tauber’s
March 3, 2016 report was provided. This report had blocked out the file number and date-of-injury
reference. A handwritten notation indicated the current file number with a June 1, 2015 date of
injury.
By decision dated April 5, 2016, OWCP denied appellant’s request for reconsideration of
the merits of his claim, finding that the reconsideration request neither raised substantive legal
questions nor included new and relevant evidence.
On April 25, 2016 appellant again requested reconsideration.
In an April 14, 2016 report, Dr. Tauber noted appellant’s history of injury. He reported
that in mid-2015 appellant began experiencing bilateral hip pain in the performance of his usual
and customary work duties. Appellant attributed his symptoms to the repetitive nature of his job,
which included prolonged walking and climbing down and up steps. Dr. Tauber indicated that
appellant did not recall reporting this injury, but did file a claim. He noted that appellant was
working modified duties.
In March 3 and April 14, 2016 reports, Dr. Tauber advised that appellant had degenerative
arthritis of both hips with labral pathology in the left hip, which had been confirmed by the MRI
scan. He opined that both hip conditions should be accepted as work related. Dr. Tauber indicated
that appellant had been a postal worker for 28 years and had done extensive walking, lifting, and
bending. He stated that it was inconceivable that an individual could carry out appellant’s activities
and not have any contribution to the degeneration of his hips. While he acknowledged that
appellant’s daily nonindustrial activities could have contributed to appellant’s bilateral

5

The left hip had subtle degenerative changes of the left hip articulation, mild labral degeneration anteriorly without
obvious displaced tear or paralabral cyst. Left hamstring origin tendinosis and discogenic degenerative disease of
lumbar spine was also noted. The right hip had osteoarethrosis including chondral denudation/chondral fissuring of
the superior acetabular margin with subtle osteophyte. A slight convexity of the femoral head superiorly may
contribute to impingement.

3

degenerative hip condition, Dr. Tauber opined that appellant’s prolonged walking, climbing,
lifting, bending, and stooping activities, without question, contributed to the findings in his hips.
By decision dated July 21, 2016, OWCP denied modification of its February 16, 2016 merit
decision. It found that the evidence submitted on reconsideration was of insufficient probative
value to warrant modification.
On August 18, 2016 appellant requested reconsideration. Appellant indicated that MRI
scan results were submitted.
In an August 4, 2016 report, Dr. Tauber diagnosed bilateral labral degeneration and
degenerative arthritis of the hips. He repeated his prior description of appellant’s employment
activities.6 Dr. Tauber noted that MRI scans had indicated pathology in both hips. He opined that
appellant’s employment duties had a significant effect on his hips. Dr. Tauber contended, “It
would be improper to state that his employment duties, which were strenuous, caused none or
contributed zero to the pathology.” He concluded that there was a causal relationship between the
hip conditions and appellant’s employment duties.
On August 26, 2016 appellant was referred to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the relationship between
appellant’s claimed bilateral hip conditions and factors of his employment. In an October 4, 2016
report, Dr. Hanley documented a history of the March 29, 2011 employment injury at which time
appellant developed back pain and was diagnosed with lumbar disc protrusion. He noted that
appellant returned to modified work delivering mail and that he did not do as much lifting and
walking. Dr. Hanley also indicated that, while seeing Dr. Tauber for the purpose of an impairment
evaluation, Dr. Tauber noted that appellant had symptoms that suggested the possibility of
osteoarthritis of the hips. He diagnosed low-grade bilateral primary arthritis of the hip, which he
noted was not significantly symptomatic at the present time. Dr. Hanley stated that the
development of degenerative arthritis was multifactorial. He noted that Dr. Tauber had mentioned
the possibility of a “cam lesion,” which meant the congenital conformation of the hip was
predisposed to impingement and, thus, labral injury. Dr. Hanley also noted that it would be
difficult to attribute appellant’s degenerative changes in the hips to anything other than a naturally
occurring disease of life. He opined that the employment factors would constitute an aggravation
on a temporary basis of the underlying condition, but it was not causative. Dr. Hanley indicated
that, at some point in the future, appellant may experience industrial aggravation that may
ultimately become permanent, but that currently was not the case as there were no objective
abnormalities on examination. He explained that the objective findings on the MRI scans picked
up findings long before symptoms occur. Dr. Hanley indicated that appellant’s reporting pain
could be consistent with trochanteric bursitis. He noted that appellant has significant degenerative
disc disease in the lumbar spine which would cause some degree of pain laterally in the hips. A
work capacity evaluation (Form OWCP-5c) was completed with permanent restrictions, which
Dr. Hanley indicated was a prophylactic effort to prevent progression.

In addressing the handwritten notations on his earlier report, Dr. Tauber replied, “The facts are that, regardless of
which claim number was typed or written in, this patient was a postal worker for 28 years carrying out extensive
walking, lifting, and bending.”
6

4

By decision dated November 16, 2016, OWCP denied modification of its July 21, 2016
decision. It noted that weight of the medical evidence rested with Dr. Hanley, the second opinion
physician, who opined that appellant’s bilateral hip condition was caused by the natural
progression of the condition and not a result of appellant’s federal employment activities.
On February 28, 2017 appellant requested reconsideration.
In a January 18, 2017 report, Dr. Tauber noted his disagreement with Dr. Hanley’s opinion
that appellant’s bilateral hip condition was not casually related to his federal employment duties.
He noted that, among the multifactorial causes of degenerative arthritis of the hips would include
strenuous activities that would include walking, lifting, bending, and stooping. Dr. Tauber opined
that it has been and remained his opinion that appellant’s industrial duties were a contributing
cause to the development of the degenerative arthritis and that those very same duties caused a
“permanent” aggravation of his degenerative arthritis. He opined that, while the causation of
appellant’s degenerative arthritis was multifactorial, the strenuous activities appellant carried out
were certainly and without question a contributing factor to the actual anatomic pathology.
Dr. Tauber concluded, “in summary, it is my opinion that these conditions were caused and
permanently aggravated by his industrial duties.”
By decision dated June 22, 2017, OWCP denied modification of its November 16, 2016
decision.
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, and that an injury was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim,9 an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claim; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.10

7

Supra note 1.

8

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

9

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
10

See. D.R., Docket No. 09-1723 (issued May 20, 2010).

5

To establish causal relationship between the employment and the claimed condition, the
employee must submit rationalized medical opinion evidence supporting such causal
relationship.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. This medical opinion must include an
accurate history of the employee’s employment injury and must explain how the condition is
related to the injury. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
The Board finds that appellant has not established that his bilateral hip conditions were
causally related to factors of his federal employment.
OWCP accepted that appellant engaged in strenuous activities of squatting, bending,
pushing, pulling, and lifting parcels and postal equipment of varying weight during his
employment duties as a city carrier. It denied his claim, however, finding that the evidence of
record failed to establish a causal relationship between the accepted employment factors and his
bilateral hip conditions.
OWCP ultimately determined that the weight of the medical evidence rested with
Dr. Hanley, a Board-certified orthopedic surgeon serving as the second opinion physician. The
Board finds that his well-rationalized report, which was based upon a proper factual and medical
background, represents the weight of the medical evidence and establishes that appellant’s bilateral
degenerative hip condition was not caused or aggravated by the accepted employment duties.13
In his October 4, 2016 report, Dr. Hanley opined that appellant’s low-grade bilateral
primary arthritis of the hips was not the result of his employment duties, but rather was caused by
the natural progression of a degenerative arthritic condition. He provided a detailed history of
injury, findings on physical examination, and review and summary of appellant’s medical reports
and diagnostic studies. Dr. Hanley explained that the development of degenerative arthritis was
multifactorial and that any aggravation of the underlying condition would be temporary. However,
on examination he found no evidence that appellant was significantly symptomatic and there were
no objective abnormalities on examination of an aggravation. Dr. Hanley also noted that there
might be other reasons for appellant’s subjective pain, including the congenital conformation of
the hip, trochanteric bursitis, and pain from appellant’s significant lumbar spine degenerative disc
disease.

11

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

12

James Mack, 43 ECAB 321 (1991).

13

Y.M., Docket No. 14-1050, 14-1193 (issued December 24, 2014).

6

The Board has reviewed the opinion of Dr. Hanley and finds that it has reliability, probative
value, and a convincing quality with respect to its conclusions regarding the issue presented on
appeal.14 Dr. Hanley’s opinion is based on a proper factual and medical history and he thoroughly
reviewed the factual and medical history by accurately summarizing the relevant medical
evidence.15 As noted, he provided medical rationale of the multifactorial causes of degenerative
arthritis of the hips and explained that appellant had no objective findings substantiating workrelated aggravation of the underlying condition at this time. Thus, his opinion is entitled to the
weight of the medical evidence and establishes that appellant’s bilateral hip condition was not
caused or aggravated by the accepted employment duties.16
In support of his claim, appellant submitted multiple medical reports from Dr. Tauber, who
opined that appellant’s labral degeneration and early degenerative arthritis of the left hip and
degenerative arthritis of the right hip were a result of appellant’s work-related occupational
exposure.17 However, Dr. Tauber’s reports lack the specificity and detail needed to establish that
appellant’s bilateral hip conditions are a result of a work-related occupational exposure.18 In his
earlier reports, he concluded without providing a rationalized opinion that appellant’s employment
activities caused or contributed to his bilateral hip pathology. In his reports, Dr. Tauber noted that
appellant had been a postal worker for 28 years and had done extensive walking and lifting and
bending. He stated that it was inconceivable that an individual could carry out appellant’s
employment activities and not have any contribution to the bilateral degeneration of his hips.
Dr. Tauber also acknowledged that appellant’s daily nonindustrial activities could have
contributed to appellant’s bilateral degenerative hip condition. His opinion is of limited probative
value as it was speculative and conclusory in nature.19 Without medical reasoning explaining how
the accepted employment activities caused or contributed to appellant’s bilateral hip condition,
Dr. Tauber’s earlier reports are insufficient to meet appellant’s burden of proof.20
Similarly, in his January 18, 2017 report, Dr. Tauber again opined that appellant’s
strenuous activities caused and permanently aggravated the bilateral degenerative hip arthritis.
However, he failed to sufficiently discuss appellant’s employment duties, only generally noting
the strenuous activities appellant engaged in. While he had some understanding of these
employment duties, Dr. Tauber failed to detail the number of hours per day appellant spent
performing each task, and the frequency of the physical movements which appellant attributed to
his injury. His statement on causation also failed to provide a sufficient explanation as to the
mechanism of injury pertaining to this occupational disease claim as alleged by appellant, namely,
how repetitive strenuous activities of squatting, bending, pushing, and lifting would cause or
14

See R.W., Docket No. 12-0375 (issued October 28, 2013).

15

See Melvina Jackson, 38 ECAB 443 (1987).

16

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

17

Id.

18

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

19

See M.W., Docket No. 17-0186 (issued March 13, 2018).

20

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

7

aggravate his bilateral degenerative hip condition.21 Without explaining how physiologically the
movements involved in appellant’s employment duties caused or contributed to his diagnosed
condition, his opinion on causal relationship is equivocal in nature and of limited probative value.22
While the record contains February 8, 2016 MRI scan reports of the left and right hips, the
Board notes that these reports are of limited probative value as the interpreting physician did not
address causal relationship. The Board has held that reports of diagnostic tests are of limited
probative value as they do not provide an opinion on the causal relationship between appellant’s
employment duties and the diagnosed conditions.23
On appeal appellant argues that Dr. Hanley’s second opinion report is confusing and not
well rationalized. He contends that Dr. Tauber has been clear with his medical reasoning in all his
reports. As noted above, Dr. Tauber failed to provide a well-rationalized medical report explaining
how appellant’s bilateral hip conditions were caused or aggravated by the accepted employment
duties. Dr. Hanley provided a well-reasoned medical opinion based on a complete medical
background and objective findings.24 Therefore, his opinion was properly afforded the weight of
the evidence.
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.25 Because appellant has failed to submit a wellrationalized medical report establishing that his bilateral hip osteoarthritis was caused or
aggravated by the accepted employment duties, he has failed to meet his burden of proof.26
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 his burden of proof to establish that his bilateral
hip conditions are causally related to the accepted factors of his federal employment.

21

S.W., Docket No. 08-2538 (issued May 21, 2009).

22

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
23

See S.G., Docket No. 17-1054 (issued September 14, 2017).

24

A well-reasoned medical opinion should also be consistent with the findings upon examination. Findings may
be noted during physical examination, laboratory testing, and diagnostic procedures. Sufficient objective data
(findings on examination, test results) should be included in the report to support the medical conclusions. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.6(a)(2)
(September 2010).
25

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

26
See generally, Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990).

8

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 24, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
King Salmon, AK, Employer
__________________________________________

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

Docket No. 07-1781
Issued: December 26, 2007

Case Submitted on the Record

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

JURISDICTION
On June 25, 2007 appellant filed an appeal of August 21, 2006 and January 18, 2007
decisions of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
He also appealed a March 21, 2007 decision denying reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained a lumbar injury in
the performance of duty; and (2) whether the Office properly denied appellant’s request for
reconsideration.
FACTUAL HISTORY
On July 6, 2006 appellant, then a 52-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on March 7, 2006 he experienced a popping sensation in
his low back followed by sharp, shooting pains when he bent over to pick up tools. Robert

Laduke, a coworker, stated that he saw appellant “bend over to pick up tools and he let out a
groan.”
In a July 12, 2006 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish his claim. The Office noted that appellant had not yet
submitted any medical evidence diagnosing an injury. Appellant was afforded 30 days in which
to submit additional evidence.
In a July 18, 2006 letter, appellant reiterated his account of the March 7, 2006 incident.
He explained that he sought treatment on March 8, 2006 from Dr. Gregory Cuthbert, a
chiropractor. Appellant did not submit any chiropractic reports or other treatment records.
By decision dated August 21, 2006, the Office denied the claim on the grounds that fact
of injury was not established. The Office accepted that the March 7, 2006 incident occurred at
the time, place and in the manner alleged. The Office found, however, that appellant did not
submit medical evidence diagnosing an injury related to the accepted incident.
In a December 21, 2006 letter, appellant requested reconsideration. He submitted reports
from Dr. Cuthbert.1 In a July 31, 2006 report, Dr. Cuthbert related appellant’s account of back
pain when bending to pick up tools on March 7, 2006. He noted that, at the March 8, 2006
examination, he was unaware that appellant’s claim was work related. Dr. Cuthbert initially
diagnosed “lumbar strain, cervical and thoracic joint dysfunction.” He first obtained x-rays on
July 31, 2006. These studies showed mild spondylitic changes and spurring from L1 to L5,
“mild anterolisthesis at L5” and mild facet arthrosis from L4 to S1. Dr. Cuthbert did not opine
that the x-rays showed spinal subluxations. He diagnosed lumbar, sacroiliac and thoracic spinal
subluxations related to the March 7, 2006 incident but characterized this as a lumbosacral strain
or sprain. In an accompanying July 31, 2006 form report, Dr. Cuthbert diagnosed cervical,
thoracic, lumbar and sacral subluxations related to the March 7, 2006 incident. He did not state
that the diagnosis of spinal subluxations was based on x-rays.
By decision dated January 18, 2007, the Office denied modification on the grounds that
fact of injury was not established. The Office found that Dr. Cuthbert was not a physician under
the Federal Employees’ Compensation Act as he did not diagnose a spinal subluxation by x-ray.
The Office noted that the July 31, 2006 x-rays were taken too long after the claimed March 7,
2006 incident to be of probative value in establishing causal relationship.
In a March 5, 2007 letter, appellant requested reconsideration, asserting that new
evidence would demonstrate that he timely notified his supervisor of the March 7, 2006 injury.
He submitted a March 2006 calendar page with the notation “back injury, told Frank” written
over March 7, 2006.
By decision dated March 21, 2007, the Office denied reconsideration on the grounds that
the evidence submitted in support of appellant’s request was irrelevant to the medical issue in the

1

Appellant also submitted Dr. Cuthbert’s August 1 to 25, 2006 chart notes, billing forms and related
correspondence. These documents do not address the March 7, 2006 incident or discuss causal relationship.

2

case. The Office found that appellant’s statement and the calendar page merely confirmed
circumstances of the injury no longer at issue.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6
ANALYSIS -- ISSUE 1
Appellant asserted that he sustained a lumbar injury on March 7, 2006 when he bent
down to pick up tools. The Office accepted that the March 7, 2006 incident occurred as alleged.
The Office denied the claim on the grounds that appellant did not submit medical evidence to
establish that the accepted incident caused a lumbar injury.
In support of his claim, appellant submitted two July 31, 2006 reports from Dr. Cuthbert,
an attending chiropractor. Under section 8101(2) of the Act, chiropractors are considered
physicians and their reports considered medical evidence, to the extent that they treat spinal
subluxations as demonstrated by x-ray to exist.7 Dr. Cuthbert first examined appellant on
March 8, 2006. He obtained x-rays on July 31, 2006. Dr. Cuthbert opined that the x-rays
showed degenerative changes from L1 to L5 and a mild anterolisthesis at L5. He did not state
that the x-rays showed spinal subluxations.
Although Dr. Cuthbert diagnosed spinal
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

5 U.S.C. § 8101(2). See also George E. Williams, 44 ECAB 530 (1993). Section 8101(3) of the Act limits the
scope of reimbursable services provided by chiropractors to manual manipulation to treat a spinal subluxation
demonstrable by x-ray. 5 U.S.C. § 8101(3).

3

subluxations elsewhere in his reports, he did not opine that the x-rays he obtained demonstrated
any spinal subluxations. Also, he opined that the March 7, 2006 incident caused a lumbar sprain
or strain, not spinal subluxations. The Board finds that, under the circumstances of this case,
Dr. Cuthbert does not qualify as a physician under the Act as he did not diagnose a spinal
subluxation by x-ray.8 His opinion is thus of no medical value in this case.9
The Board finds that appellant did not submit medical evidence establishing that he
sustained an injury causally related to the accepted work factors. Therefore, the Office’s
August 21, 2006 and January 18, 2007 decisions denying appellant’s claim are proper under the
law and the facts of this case.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a
claimant must: (1) show that the Office erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by the Office; or
(3) constitute relevant and pertinent new evidence not previously considered by the Office.11
Section 10.608(b) provides that, when an application for review of the merits of a claim does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.12
10

In support of his request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.13 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.14 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.15
ANALYSIS -- ISSUE 2
The Office denied appellant’s traumatic injury claim by decision dated August 21, 2006,
finding that he submitted no medical evidence establishing the presence of an injury. Appellant
8

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

9

Isabelle Mitchell, 55 ECAB 623 (2004).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

13

Helen E. Tschantz, 39 ECAB 1382 (1988).

14

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

15

Annette Louise, 54 ECAB 783 (2003).

4

requested reconsideration by December 21, 2006 letter and submitted reports from Dr. Cuthbert.
The Office denied modification by January 18, 2007 decision, finding that appellant had not
submitted any medical evidence substantiating an occupational injury as Dr. Cuthbert, a
chiropractor, was not a physician under the Act for the purposes of the case. Appellant again
requested reconsideration by March 5, 2007 letter, asserting that he timely notified his supervisor
of the March 7, 2006 incident. The Office denied reconsideration by a March 21, 2007 decision,
finding that the factual information submitted was irrelevant to the medical issue in the case.
The issue at the time of the last merit decision in the case was whether appellant
established that he sustained an injury causally related to the accepted March 7, 2006 incident.
To be relevant, the evidence submitted in support of the March 5, 2007 request for
reconsideration must address that issue. Appellant’s letter and the calendar page are not medical
evidence. Therefore, they are irrelevant to the critical issue in the claim at the time of the last
merit decision. The Board has held that the submission of evidence which does not address the
particular issue involved does not comprise a basis for reopening a case.16
Thus, the Office properly refused to reopen appellant’s claim for a merit review under
section 8128(a) of the Act, because he did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that appellant has not established that he sustained a lumbar injury in the
performance of duty as alleged. The Board further finds that the Office properly denied
appellant’s request for reconsideration.

16

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 21 and January 18, 2007 and August 21, 2006 are
affirmed.
Issued: December 26, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS INSTALLATION FACILITIES &
ENVIRONMENT DIVISION, Quantico, VA,
Employer
__________________________________________

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

Docket No. 19-0774
Issued: November 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a September 4, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish a cardiac condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 6 and 13, 2018 appellant, then a 58-year-old high voltage electrician, filed
traumatic injury claims (Form CA-1) alleging that on March 4, 2018 he experienced chest pains
and a heart attack at approximately 9:30 a.m. while in the performance of duty.3 He stopped work
that day. Appellant was admitted to the hospital for a ST-elevation myocardial infarction (STEMI)
with stent and catheterization to left anterior descending (LAD) coronary artery.
On March 8, 2018 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16) for “heart attack.”
In a development letter dated March 13, 2018, OWCP requested that appellant provide
additional factual and medical information to support his claim. A factual questionnaire was
provided for his completion. OWCP afforded appellant 30 days in which to submit the necessary
evidence.
OWCP received multiple hospital records, including diagnostic testing, from March 4
through 6, 2018. In a March 4, 2018 report, Dr. Khalid A. Abousy, a Board-certified cardiologist,
diagnosed an acute myocardial infraction. In a March 7, 2018 attending physician’s report (Form
CA-20), he indicated that appellant would be totally disabled for approximately one to two months
as a result of stent placement.
OWCP received progress notes dated March 13 and April 11, 2018, and an April 12, 2018
attending physician’s report (Form CA-20) from Dr. Abousy regarding appellant’s atherosclerotic
coronary artery disease, post March 4, 2018 STEMI anterior with stent and catheterization to LAD
coronary artery.
By decision dated April 17, 2018, OWCP denied appellant’s traumatic injury claim as he
had not established fact of injury. It found that the evidence submitted was insufficient to establish
that the event occurred as described because appellant had not submitted a response to its
questionnaire. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 26, 2018 appellant requested a review of the written record before an OWCP
hearing representative. In an undated statement, he indicated that he had no prior history of cardiac
illness and that he was an essential and key employee during inclement weather and emergency
situations. On the day of the incident, appellant indicated that he was working under cold and
inclement weather, which included extremely high winds, to restore power to Quantico Marine
3

The initial Form CA-1 signed by D.P., Maintenance Mechanic Supervisor, indicated that appellant’s heart attack
did not occur while in the performance of duty. The subsequent Form CA-1 signed by N.F., Agency Reviewer,
indicated that appellant was injured while in the performance of duty.

2

Core Base. The Base was under Code Red weather alert conditions and this was his third straight
day of working 16-hour shifts. Appellant advised that his job required him to lift heavy equipment
or materials averaging 50 pounds and above. He noted that the stress of working 16 hours per day,
inappropriate equipment and gear, and the weight of the equipment and materials caused the stress
and physical strain on his body which he believed caused or contributed to his symptoms of chest
discomfort and body weakness and led to his cardiac condition. Appellant also described his work
activities the week leading up to his heart attack.
Additional medical reports from Dr. Abousy were received. In an April 30, 2018 report,
Dr. Abousy diagnosed coronary artery disease involving native coronary artery without angina
pectoris; presence of drug-coated stent in LAD coronary artery; essential hypertension; and
STEMI involving LAD coronary artery. In an April 30, 2018 a work capacity evaluation (Form
OWCP-5c), Dr. Abousy indicated that appellant was totally disabled from March 4 through
May 15, 2018. He advised that he could return to work with no restrictions on May 15, 2018. In
May 21, June 27 and August 8, 2018 work capacity evaluations (Form OWCP-5c), Dr. Abousy
provided appellant’s work-related restrictions. It also received a copy of Dr. Abousy’s
Certification of Health Care Provider for Employee’s Serious Health Condition (Family and
Medical Leave Act), which noted appellant’s medical course following his myocardial infraction.
An April 26, 2018 echocardiogram report was also received.
In a July 26, 2018 statement, D.P, Maintenance Mechanic Supervisor, indicated that on
March 4, 2018 appellant was asked to work overtime to repair some of the damaged electrical lines
that were knocked down by a wind storm that had occurred earlier in the week. He advised that
appellant had worked volunteer overtime prior to March 4, 2018 for 16 hours, but not on
March 4, 2018. D.P. included a copy of appellant’s time cards, noting that, on March 4, 2018,
appellant had only worked 2.75 hours before falling ill and being taken to the hospital. He
indicated all of the duties appellant mentioned were his normal every day duties as a high voltage
electrician. D.P. disputed appellant’s claim that the weather on March 4, 2018 was cold and
inclement with extremely high winds and attached a copy of a weather report for March 4, 2018.
He also disputed appellant’s claim that he had not been issued appropriate clothing and gear.
By decision dated September 4, 2018, an OWCP hearing representative converted
appellant’s traumatic injury claim into an occupational disease claim and affirmed OWCP’s
April 17, 2018 decision. The hearing representative found that appellant had established that his
position had “physical requirements” and that “he was working when emergency treatment was
obtained and he was treated for a myocardial infarction.” The hearing representative also found
that the medical evidence of record failed to establish that appellant’s myocardial infarction was
caused by his employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
4

Supra note 1.

3

time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cardiac
condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted several reports from Dr. Abousy which noted
the March 4, 2018 myocardial infraction and placement of a stent in the LAD coronary artery.
Dr. Abousy also diagnosed coronary artery disease, essential hypertension, and orthostasis. He,
however, has not provided an opinion as to the cause of appellant’s cardiac conditions. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s

5

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
7
S.C., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

M.B., Docket No. 17-1999 (issued November 13, 2018).

10

M.L., Docket No. 18-1605 (issued February 26, 2019).

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condition is of no probative value on the issue of causal relationship.11 Therefore, Dr. Abousy’s
reports are insufficient to establish appellant’s claim.
OWCP also received multiple diagnostic reports taken during appellant’s hospital stay
along with an April 26, 2018 echocardiogram report. However, the Board has held that diagnostic
test reports lack probative value as they do not provide an opinion on causal relationship between
his employment incident and a diagnosed condition.12
Appellant’s honest belief that the factors of his federal employment caused his medical
condition, however sincerely held, does not constitute medical evidence sufficient to establish
causal relationship. As the record lacks rationalized medical evidence establishing causal
relationship between the accepted employment duties and appellant’s cardiac conditions, the
Board finds that appellant has not met his burden of proof.13
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 10.607.14
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cardiac
condition causally related to the accepted factors of his federal employment.

11

M.D., Docket No. 19-0338 (issued July 9, 2019); S.F., Docket No. 18-1030 (issued April 5, 2019); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
12

T.H., Docket No. 18-1736 (issued March 13, 2019).

13

See B.K., Docket No. 19-0829 (issued September 25, 2019).

14

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2019
Washington, DC

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

Janice B. Askin, 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
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1156
Issued: July 3, 2013

Case Submitted on the Record

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

JURISDICTION
On April 12, 2013 appellant, through his representative, filed a timely appeal from the
February 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which terminated his medical benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits.
FACTUAL HISTORY
On June 28, 2010 appellant, a 53-year-old mail handler technician, sustained a traumatic
injury in the performance of duty when a roller door on the back of the postal truck dropped on
1

5 U.S.C. § 8101 et seq.

his head and the back of his neck. OWCP accepted his claim for cervical sprain and concussion
and he received compensation for periods of disability.
On September 16, 2011 Dr. Lindsey J. Robinson, a Board-certified clinical
neuropsychologist, diagnosed cognitive disorder due to concussion (improved). Although some
fluctuations in cognitive performance were noted due to fatigue on the day of testing, appellant’s
overall clinical presentation and neuropsychological test performance suggested continued
recovery from the head injury and concussion he sustained on June 28, 2010.
On February 23, 2012 Dr. Scott S. Katzman, an attending Board-certified orthopedic
surgeon, described appellant’s work injury as significant. He noted an indentation on appellant’s
head where the truck door had struck him. Dr. Katzman also noted that appellant continued to
have neck pain and problems in that region had not improved in spite of conservative treatment.
A physical examination showed tenderness to the neck, decreased motion, positive spasms all
along the cervical spine and a positive Jackson compression sign. Dr. Katzman diagnosed
multiple cervical disc bulges, a probable herniated disc, radiculopathy, neck pain and a closed
head injury. He recommended surgery and advised that the need for surgery was directly related
to the June 28, 2010 work injury.
On March 16, 2012 Dr. Robert A. Smith, a Board-certified orthopedic surgeon and
OWCP second opinion physician, related appellant’s treatment history and his findings on
examination. There was no spasm, atrophy, trigger points or deformity. Active spinal range of
motion was essentially normal without spasm or rigidity. Dr. Smith could not clinically
appreciate any crepitation. Appellant complained of no headaches or other central neurological
problem. Diagnostic studies showed multilevel disc bulging but no evidence of post-traumatic
abnormality. Dr. Smith stated that the only accepted musculoskeletal condition appeared to be a
cervical sprain. It was his opinion based on the current clinical examination that this condition
had resolved. Appellant was not complaining about any postconcussive symptomatology: “In
that regard, it appears that his concussion has resolved as well.”
OWCP found a conflict in medical opinion between Dr. Katzman and Dr. Smith on
whether appellant had residuals of the June 28, 2010 employment injury. It referred him,
together with the case file and a statement of accepted facts, to Dr. Donald F. Leatherwood, II, a
Board-certified orthopedic surgeon, to resolve the conflict. OWCP asked Dr. Leatherwood to
address whether the injury of June 28, 2010 had resolved and any residuals of the accepted
injury.”2
On May 3, 2012 Dr. Leatherwood reviewed appellant’s record and related his history of
injury. Appellant reported that his neck was really not any better. The cervical spine
demonstrated approximately 70 percent voluntary rotation in all planes with some degree of
crepitus. There was tenderness in the lower cervical paraspinous musculature, particularly on the
left and going into the trapezius muscle. There was no ecchymosis, crepitus, step-offs or spasm.

2

The statement of accepted facts correctly noted that OWCP had accepted both a sprain of the neck and a
concussion.

2

Dr. Leatherwood explained that a cervical sprain/strain was an injury that could be
expected to recover in approximately six weeks. In the face of underlying degenerative disease,
it might take longer, certainly up to three months. As appellant was well beyond that period of
time, it was Dr. Leatherwood’s opinion that he had recovered from his cervical sprain/strain.
In a decision dated July 18, 2012, OWCP terminated appellant’s medical benefits, on the
grounds that he had fully recovered from his June 28, 2010 employment injury.
In a February 12, 2013 decision, an OWCP hearing representative affirmed. Based on
the opinion of the impartial medical specialist, she found that OWCP met its burden of proof
justifying the termination of medical benefits for the accepted condition of cervical sprain.
Although the hearing representative stated at one point in the decision that OWCP did not meet
its burden with respect to the accepted condition of concussion, she later noted that there was no
indication that appellant continued to suffer from or was undergoing treatment for a concussion.
She thereby affirmed OWCP’s July 18, 2012 decision.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances and supplies prescribed or recommended by a qualified physician
which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period
of disability or aid in lessening the amount of the monthly compensation.3
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 It may not terminate compensation without a positive
demonstration by the weight of evidence that entitlement to benefits has ceased.5
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.6 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7

3

5 U.S.C. § 8103(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.3
(July 1993).
6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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ANALYSIS
A conflict arose between the attending orthopedic surgeon, Dr. Katzman, and the second
opinion orthopedic surgeon, Dr. Smith, on whether appellant continued to suffer from the
accepted cervical sprain. Although Dr. Katzman did not directly address the accepted cervical
sprain, he noted that the June 28, 2010 employment injury was significant and that appellant
continued to have neck pain and problems in that area and had not improved in spite of
conservative treatment. Dr. Smith, however, found that the accepted cervical sprain had
resolved, based on appellant’s current clinical examination. OWCP properly referred appellant
to Dr. Leatherwood, a Board-certified orthopedic surgeon and impartial medical specialist.
OWCP provided Dr. Leatherwood with appellant’s case file and a statement of accepted
facts so he could base his opinion on a proper medical and factual history. Dr. Leatherwood
examined appellant and explained that a cervical sprain/strain was an injury that could be
expected to recover in approximately six weeks, or up to three months in the face of underlying
degenerative disease. As appellant was well beyond that period of time, Dr. Leatherwood
concluded that he had recovered from his cervical sprain/strain.
The Board finds that Dr. Leatherwood’s opinion is based on a proper factual background
and current clinical examination and is sufficiently well rationalized that it must be accorded
special weight in resolving whether appellant continues to suffer from the accepted cervical
sprain. As the weight of the medical opinion evidence establishes that the accepted cervical
sprain has resolved, the Board finds that OWCP has met its burden to justify the termination of
medical benefits for that particular condition. Accordingly, the Board will affirm OWCP’s
February 12, 2013 decision on the issue of cervical sprain.
On the issue of concussion, the Board finds that OWCP has not met its burden of proof.
OWCP found a broad conflict on whether appellant continued to suffer residuals of the June 28,
2010 employment injury, and the statement of facts it provided Dr. Leatherwood made clear that
both cervical sprain and concussion were accepted medical conditions. Dr. Leatherwood,
however, did not address the accepted concussion.
Dr. Katzman diagnosed a closed head injury, but he did not find that appellant continued
to suffer from concussion. He focused his attention on the disc bulges, possible disc herniation
and positive compression sign. Dr. Smith noted that appellant was not complaining about any
postconcussive symptomatology, and therefore it “appeared” that his concussion had resolved.
He did not address the September 16, 2011 report of Dr. Robinson, the Board-certified clinical
neuropsychologist, who found that appellant was continuing to recover from the June 28, 2010
head injury and concussion and who diagnosed cognitive disorder due to concussion (improved).
Dr. Smith’s opinion on concussion stands as the only medical opinion to support that the
accepted concussion has resolved, but his opinion carries little weight because it is couched in
speculative terms. As the medical opinion evidence does not positively establish that appellant
has fully recovered from the accepted concussion, the Board finds that OWCP has not met its
burden to justify the termination of medical benefits for that particular condition. The Board will
reverse OWCP’s February 12, 2013 decision on the issue of concussion.

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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 OWCP met its burden of proof to terminate medical benefits for the
accepted condition of cervical sprain but did not meet its burden to support the termination of
medical benefits for the accepted concussion.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: July 3, 2013
Washington, DC

Richard J. Daschbach, Chief 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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