United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MILWAUKEE VETERANS AFFAIRS
MEDICAL CENTER, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 20-0683
Issued: September 23, 2020

Case Submitted on the Record

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

JURISDICTION
On February 7, 2020 appellant, through counsel, filed a timely appeal from a January 2,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted April 15, 2019 employment incident.
FACTUAL HISTORY
On April 18, 2019 appellant, then a 61-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on April 15, 2019 he strained his back and sustained
injuries to his neck and shoulder while in the performance of duty. He explained that he was
carrying a tray to a tray-carrier when his left foot struck the lip of a metal plate bolted to the floor
and caused him to fall to his knees and then on his face. The nursing staff then arrived and called
the fire department which provided attention to appellant’s lower back pain, as well as pain in his
neck and shoulder. Appellant stopped work on the date of the alleged injury day.
In a May 3, 2019 development letter, OWCP informed appellant that it had received no
evidence in support of his claim. It advised him of the type of factual and medical evidence
necessary to establish his claim and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to respond. No additional evidence was received.
In a June 3, 2019 letter, the employing establishment controverted appellant’s claim.
By decision dated June 7, 2019, OWCP denied appellant’s traumatic injury claim, finding
that he had not submitted any medical evidence containing a diagnosis in connection with his
injury. It concluded, therefore, that the requirements had not been met to establish an injury as
defined under FECA.
It subsequently received a May 16, 2019 letter, wherein Dr. Jennifer Martin, Boardcertified in physical medicine and rehabilitation, indicated that appellant had been admitted to the
hospital from April 22 to May 16, 2019 and was under strict restrictions from neurosurgery until
further notice. She indicated that he would undergo outpatient follow up and neurosurgery would
determine when his restrictions could be liberalized and when he could return to work.
On June 19, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In April 15, 2019 diagnostic reports, Dr. Vivek Manchanda, a Board-certified radiologist,
performed x-rays of appellant’s thoracic and lumbar spine due to complaints of low back pain and
lower extremity weakness after a fall forward. He noted no acute fracture, mild diffusely increased
density of the thoracic spine and mild degenerative changes of the mid thoracic spine and moderate
L5-S1 degenerative disease, mild L4-5 degenerative disc disease, and no acute fracture of the
lumbar spine.
In a separate April 15, 2019 diagnostic report, Dr. Mario Laguna, a Board-certified
diagnostic radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s cervical
spine, finding degenerative changes with associated compressive myelopathy at C3-4, C4-5 and

2

C5-6.3 In a computerized tomography (CT) scan of even date, he found no evidence of a fracture
in appellant’s cervical spine.
In an April 15, 2019 medical report, Dr. Daniel Kopatich, Board-certified in emergency
medicine, recounted appellant’s history of injury in which appellant tripped in the kitchen at work
and fell on his knees and face and noted his history of spinal stenosis. On review of the diagnostic
reports of even date he admitted appellant to the hospital and scheduled him for neurosurgery the
following week.
In a separate April 15, 2019 medical report, Dr. Karin Swartz, a Board-certified
neurosurgeon, noted appellant’s prior history of severe cervical stenosis and cervical myelopathy
and found that the diagnostic reports of even date demonstrated that his unchanged when compared
to reports dated August 11, 2017. Appellant informed her that he experienced pain and lower
extremity weakness after falling at work that day. Dr. Swartz noted new leg weakness and
reasoned that it appeared to be related to muscle spasms. She opined that appellant’s fall likely
caused muscle spasms and stated that there was limited suspicion for a spinal cord injury. In an
April 16, 2019 report, Dr. Michael Gelsomino, a Board-certified neurosurgeon, noted that he also
evaluated appellant the previous day and relayed that he had been trying to schedule appellant’s
surgery related to his advanced myelopathy for months. He noted that appellant had no fractures
from his fall.
In another April 15, 2019 medical report, Dr. Andrew Scrima, Board-certified in pain
medicine, evaluated appellant after his fall at work and noted his history of severe cervical stenosis
with compressive myelopathy. Appellant reported increased intensity of the left lower arm, hand
paresthesias, right leg weakness, and pain in the left side of his neck and lower back since his fall.
On evaluation Dr. Scrima stated his concern for the worsening of appellant’s cervical myelopathy
and opined that this could be due to a muscular strain.
In an April 16, 2019 physical therapy report, Melanie Schultz, a physical therapist, met
with appellant to review her treatment goals related to his cervical myelopathy and difficulty
walking due to muscle spasms.
Appellant also submitted multiple medical reports dated April 15 and 16, 2019 signed by
registered nurses.
A telephonic hearing was held before an OWCP hearing representative on
October 17, 2019. Appellant recounted the events of the April 15, 2019 employment incident in
which he was carrying trays to a tray carrier and his foot caught a metal plate bolted to the floor
and caused him to fall to his knees and face. He was then taken by ambulance to the hospital after
receiving assistance from some staff nurses. Appellant indicated that he stayed in the hospital for
a week and that he was previously scheduled to undergo a cervical spinal cord fusion on April 22,
2019 prior to his fall. He discussed his lower back problems and stated that he was diagnosed with
muscle spasms that he would have to deal with for at least six months. The hearing representative
explained that appellant would need a narrative report from his treating physician providing this

3

Dr. Laguna noted that his findings were similar to an August 11, 2017 MRI scan of appellant’s cervical spine.

3

diagnosis with an explanation of how his injury was causally related to his employment incident.
He held the case record open for 30 days for the submission of additional evidence.
Appellant submitted a copy of the April 15, 2019 medical report and April 16, 2019
addendum signed by Drs. Swartz and Gelsomino.
By decision dated January 2, 2020, OWCP’s hearing representative affirmed the June 7,
2019 decision.
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
time limitation 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 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 incident identified by the claimant.10

4

Supra note 2.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

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
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q).
9

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

4

In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted April 15, 2019 employment incident.
In an April 15, 2019 medical report, Dr. Swartz noted appellant’s prior history of severe
cervical stenosis and cervical myelopathy and found that the diagnostic reports from April 15,
2019 were unchanged when compared to reports dated August 11, 2017. She noted new leg
weakness and reasoned that it appeared to be related to muscle spasms. Dr. Swartz opined that
appellant’s fall likely caused muscle spasms and stated that there was limited suspicion for a spinal
cord injury. The Board has found that pain and spasm are symptoms and not a specific medical
diagnosis.12 The Board has also held that a medical report lacking a firm diagnosis and a
rationalized medical opinion regarding causal relationship is of no probative value.13 For this
reason, Dr. Swartz’ April 15, 2019 medical report is insufficient to meet appellant’s burden of
proof.
Similarly, in Dr. Scrima’s April 15, 2019 medical report, he evaluated appellant’s
symptoms after appellant’s fall at work. He listed his concern of the worsening of appellant’s
cervical myelopathy and opined that it could be due to a muscle strain. As stated above, a medical
report lacking a firm diagnosis and a rationalized medical opinion regarding causal relationship is
of no probative value.14 For this reason, Dr. Scrima’s April 15, 2019 medical report is insufficient
to establish appellant’s burden of proof.
Appellant also submitted April 15, 2019 diagnostic reports, including x-rays, MRI and CT
scans of his cervical, thoracic, and lumbar spine from Drs. Manchanda and Laguna. The
physicians found no evidence of an acute fracture and mild degenerative changes with associated
compressive myelopathy. The Board has held that diagnostic tests, standing alone, lack probative
value as they do not provide an opinion on causal relationship between appellant’s employment
duties, and the diagnosed conditions.15 Appellant also submitted medical reports from
Drs. Kopatich, Gelsomino, and Martin. In an April 15, 2019 medical report, Dr. Kopatich
reviewed appellant’s history of injury relating to the employment incident and admitted him to the
hospital for further treatment. In an April 16, 2019 report, Dr. Gelsomino evaluated appellant for
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
12
M.H., Docket No. 18-0873 (issued December 18, 2019); J.S., Docket No. 19-0863 (issued November 4,
2019); V.B., Docket No. 19-0643 (issued September 6, 2019).
13

P.C., Docket No. 18-0167 (issued May 7, 2019).

14

Supra note 10.

15

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

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his symptoms related to his fall and noted that he had suffered no acute fracture due to the incident.
Additionally, Dr. Martin, in a May 16, 2019 letter, indicated that appellant had been admitted to
the hospital from April 22 to May 16, 2019 and would be under strict restrictions from
neurosurgery until further notice. As stated previously, medical evidence lacking a firm diagnosis
and a rationalized medical opinion regarding causal relationship is of no probative value.16 For
this reason, this evidence is also insufficient to meet appellant’s burden of proof.
Lastly, the remaining medical evidence consists of various medical reports and notes from
physical therapists and registered nurses. The Board has held that certain healthcare providers,
such as physician assistants, nurse practitioners, physical therapists, and social workers are not
considered physicians as defined under FECA.17 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.18 Thus, this
evidence is also insufficient to establish the claim.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to his April 15, 2019
employment incident.19 Appellant, therefore, has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted April 15, 2019 employment incident.

16

Supra note 10.

17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
Id. at § 8101(2); 20 C.F.R. § 10.5(t). See also supra note 11 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); J.F., Docket No. 19-1694 (issued March 18, 2020) (physical
therapists are not considered physicians under FECA); D.S., Docket No. 19-1657 (July 20, 2020) (nurse practitioners
and registered nurses are not considered physicians under FECA).
18

19

See T.J., Docket No. 18-1500 (issued May 1, 2019); see D.S., Docket No. 18-0061 (issued May 29, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Hines, IL, Employer
__________________________________________

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

Docket No. 17-1688
Issued: December 13, 2018

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant, through counsel, filed a timely appeal from a March 24, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the March 24, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability on December 1, 2015 causally related to his accepted September 10, 2015 employment
injury.
FACTUAL HISTORY
On September 10, 2015 appellant, a 41-year-old vocational nurse, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left hip and right lower back that same day as a
result of being hit by a desktop. He stated that the desktop was leaning against a wall and was
slightly blocking a portion of an office doorway when it fell on him at work. By decision dated
October 16, 2015, OWCP accepted appellant’s claim for left hip sprain and strain.
In a September 25, 2015 report, Dr. Abid Nazeer, a Board-certified psychiatrist, diagnosed
major depressive disorder, single episode, unspecified and pain disorder associated with
psychological factors and medical condition.
On October 16, 2015 Dr. Sunil Malkani, a Board-certified internist, diagnosed major
depressive disorder, single episode, unspecified, pain disorder associated with psychological
factors and medical condition, bilateral hip joint arthritis, chronic radicular low back pain,
idiopathic thrombocytopenic purpura, mix hyperlipidemia, impaired fasting glucose, primary
osteoarthritis of both knees, and gastroesophageal reflux disease with esophagitis.
In an October 23, 2015 report, Dr. Nazeer opined that appellant’s conditions were directly
related to his September 10, 2015 work injury due to post-trauma anxiety and worsening of
depressive symptoms as a sequela to the injury.
In a hospital report dated October 26, 2015, Dr. David Sanchez, a Board-certified
emergency medicine specialist, reported that appellant visited the emergency department due to
left hip pain. He noted that appellant had a history of severe osteoarthritis in the bilateral hips,
worse in the left hip, and over the weekend his pain had been exacerbated. Appellant also indicated
that he was waiting for a left hip replacement to be scheduled. Dr. Sanchez diagnosed hip pain
and discharged appellant.
On November 13, 2015 appellant accepted a part-time, limited-duty assignment as a
vocational nurse from the employing establishment. The duties included computer work, desktop
and office work assignments; answering the telephone; providing customer service; and filing.
The physical requirements included no lifting over five pounds and no pushing, kneeling, or
squatting.
In a November 19, 2015 report, Dr. Parkson Lin, an emergency medicine physician, noted
that appellant was treated in the emergency department that day for chronic left hip pain and was
released to work, effective November 21, 2015.
On December 4, 2015 Dr. Malkani diagnosed tendinitis of the right wrist, osteoarthritis of
the right wrist, and chronic pain disorder. He advised that appellant was unable to work due to
joint pains.

2

On December 15, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period December 1 to 12, 2015 and continuing.
By development letter dated December 17, 2015, OWCP advised appellant of the
deficiencies of his claim. It noted that he had not submitted any medical evidence in support of
his claim and instructed him to provide medical documentation supporting total disability for the
dates claimed. OWCP afforded appellant 30 days to submit additional evidence and provide his
response.
In response, appellant submitted physical therapy reports dated October 2, 6, and 7, 2015.
In a hospital report dated November 19, 2015, Dr. Lin diagnosed other chronic pain, pain
in left hip, and unilateral primary osteoarthritis of the left hip. He reported that appellant had
constant throbbing in the left hip radiating into the groin. Dr. Lin noted that appellant had a history
of osteoarthritis.
On January 5, 2016 appellant requested that OWCP expand his list of accepted conditions
to include lumbar back injury/pain, likely strain, major depressive disorder (single severe without
psychosis), and pain disorder with both medical and psychological factors.
An x-ray of the left hip dated September 12, 2015 demonstrated degenerative changes and
no evidence for acute fracture or dislocation.
Appellant submitted reports dated October 8, 17, 28, and 31, November 12 and 18, and
December 4, 2015 from Dr. Malkani who reiterated his diagnoses.
On December 1, 2015 Julie Morgan, a physician assistant, diagnosed continued severe
bilateral hip pain from work-related injury and advised that appellant was totally disabled from
work until surgical approval.
In a December 22, 2015 report, Dr. Nazeer continued to diagnose pain disorder with both
medical and psychological factors and major depressive disorder, single, severe, without
psychosis. He opined that appellant’s work injury caused debilitating pain and a change in his
level of functioning and independence. Dr. Nazeer explained that appellant’s symptoms traversed
both psychiatric and physical spheres and his total disability was expected to last at least one year.
On January 6, 2016 Dr. Benjamin Domb, a Board-certified orthopedic surgeon, noted that
appellant had been under his care since July 28, 2015 after he injured both of his hips while he was
at work, falling down stairs, in March 2015. He was diagnosed with labral tear of the right hip
and left hip labral tear with significant amount of osteoarthritis. Dr. Domb opined that appellant
was suffering with significant pain of both conditions and advised that he was totally disabled from
work.
In a February 8, 2016 report, Dr. Domb noted that appellant had a work-related injury on
September 10, 2015. He indicated that the injury was accepted for strain and sprain of the left hip,
but appellant had also been diagnosed with a labral tear with left hip significant osteoarthritis.
Dr. Domb opined that appellant was suffering significant pain from both conditions and was totally
disabled from work, including light duty. He noted that appellant’s disability was expected to last
at least one year.
3

By decision dated March 23, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period commencing December 1, 2015.
On April 11, 2016 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
Appellant submitted a September 15, 2015 report from Dr. Domb who released appellant
to modified work/duty on September 22, 2015 with restrictions of no lifting greater than 5 to 10
pounds and no bending, kneeling, or squatting.
In a February 23, 2016 report, Dr. Glen Wurglitz, a clinical psychologist, diagnosed major
depressive disorder, single episode, moderate and adjustment disorder, with depressed mood,
moderate.
In an April 14, 2015 report, Dr. John A. Lombardi, an orthopedic surgeon, advised that
appellant was not capable of performing any high-impact activities indefinitely.
A telephonic hearing was held before an OWCP hearing representative on
December 15, 2016. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Subsequently, appellant submitted a September 1, 2016 report from Dr. Martin Siems, a
Board-certified orthopedic surgeon, who diagnosed probable shoulder impingement with mild-tomoderate acromioclavicular arthropathy and ruled out glenohumeral arthritis. Dr. Siems noted
that appellant was having low back pain, bilateral hip pain, and bilateral shoulder pain.
On September 13, 2016 Dr. Siems diagnosed bilateral shoulder impingement syndrome,
bilateral hip osteoarthritis, articular cartilage disorder of the right hip, and possible labral tear.
By decision dated March 24, 2017, OWCP’s hearing representative advised appellant that
it appeared that he was claiming a recurrence of disability and found that it was unclear why he
stopped work on December 1, 2015. It denied his recurrence claim because the medical evidence
of record was insufficient to establish a recurrence of disability causally related to his
September 10, 2015 employment injury. OWCP’s hearing representative further found that the
evidence of record was insufficient to establish a return or increase of disability due to a
consequential injury or condition stemming from appellant’s accepted left hip conditions.
LEGAL PRECEDENT
Where appellant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the recurrence of disability is causally related to the original injury.4 This
burden includes the necessity of furnishing evidence from a qualified physician who, on the basis
of a complete and accurate factual and medical history, concludes that the condition is causally

4

See Robert H. St. Onge, 43 ECAB 1169 (1992).

4

related to the employment injury.5 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated, or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the physician’s
conclusion of causal relationship.8 While the opinion of a physician supporting causal relationship
need not be one of absolute medical certainty, the opinion must not be speculative or equivocal.
The opinion should be expressed in terms of a reasonable degree of medical certainty.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability on December 1, 2015 causally related to his accepted September 10, 2015 employment
injury.
Appellant submitted a series of medical reports from attending physicians which the Board
finds insufficient to establish the claim. The report from Dr. Lombardi failed to establish a medical
diagnosis in connection with the injury. The Board finds that Dr. Sanchez’ diagnosis of left hip
pain is a description of a symptom rather than a clear diagnosis of the medical condition.10
Although Dr. Wurglitz, Dr. Siems, Dr. Lin, and Dr. Malkani provided firm diagnoses, the Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.11 For these reasons, the
above-noted evidence is insufficient to satisfy appellant’s burden of proof with respect to causal
relationship.12
Dr. Domb noted that appellant had been under his care since July 28, 2015 after he injured
both of his hips while he was at work, falling down stairs, in March 2015. Appellant was
diagnosed with labral tear of the right hip and left hip labral tear with a significant amount of
5
Section 10.104(a)(b) of the Code of Federal Regulations provides that when an employee has received medical
care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical
report. The report should include the physician’s opinion with medical reasons regarding the causal relationship
between the employee’s condition and the original injury, any work limitations or restrictions, and the prognosis. 20
C.F.R. § 10.104.
6

See supra note 4.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013); see
supra note 4.
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see Shirloyn J.
Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).
9

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

10
The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
11

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

12

See supra notes 4 to 9.

5

osteoarthritis.
Dr. Domb later reported that appellant had a work-related injury on
September 10, 2015. He indicated that the injury had been accepted for strain and sprain of the
left hip, but appellant had also been diagnosed with a labral tear with left hip significant
osteoarthritis. Dr. Domb opined that appellant was suffering significant pain from both conditions
and was totally disabled for work. The Board finds that Dr. Domb failed to provide sufficient
medical rationale explaining how appellant’s conditions were causally related to the September 10,
2015 employment injury, without an intervening injury or new exposure. Dr. Domb did not
specifically address causal relationship between appellant’s accepted conditions and his claimed
recurrence of disability or consequential conditions. The need for rationale is particularly
important as the evidence indicates that appellant had a preexisting bilateral hip condition.13
Therefore, the Board finds that this evidence is insufficient to expand the acceptance of his claim
or establish his claim for a recurrence.
In his reports, Dr. Nazeer diagnosed major depressive disorder, single episode, unspecified
and pain disorder associated with psychological factors and medical condition. He opined that
appellant’s conditions were directly related to his September 10, 2015 work injury due to posttrauma anxiety and worsening of depressive symptoms as a sequela to the injury. In a
December 22, 2015 report, Dr. Nazeer continued to diagnose pain disorder with both medical and
psychological factors and major depressive disorder, single, severe, without psychosis. He opined
that appellant’s work injury caused debilitating pain and a change in his level of functioning and
independence and explained that appellant’s symptoms traversed both psychiatric and physical
spheres. Dr. Nazeer’s reports are insufficient to establish that appellant sustained a recurrence of
his accepted medical conditions. He failed to provide sufficient medical rationale explaining how
appellant’s psychiatric and physical conditions were causally related to the September 10, 2015
work injury. The Board finds that the reports from Dr. Nazeer are insufficient to establish a
consequential injury which was caused or aggravated by the accepted September 10, 2015
employment injury, without an intervening injury or new exposure. Therefore, the Board finds
that this medical evidence is insufficient to establish his claim for a recurrence.
The September 12, 2015 x-ray demonstrates degenerative changes of the left hip, but the
diagnostic study does not address the etiology of appellant’s left hip condition. The Board has
held that reports of diagnostic tests lack probative value as they do not provide an opinion on
causal relationship between his employment duties and a diagnosed condition.14
Appellant also submitted evidence from physical therapists and physician assistants. These
reports do not constitute competent medical evidence because certain healthcare providers such as
physician assistants, nurse practitioners, physical therapists, and social workers are not considered
“physician[s]” as defined under FECA.15 Consequently, their medical findings and/or opinions

13
See O.C., Docket No. 17-1175 (issued October 29, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009);
Michael S. Mina, 57 ECAB 379 (2006).
14

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

15

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

6

are of no probative value and will not suffice for purposes of establishing entitlement to
compensation benefits.16
As appellant has not submitted rationalized medical evidence sufficient to establish a
recurrence of disability on December 1, 2015, causally related to his accepted September 10, 2015
employment injury, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence
disability on December 1, 2015 causally related to his accepted September 10, 2015 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2018
Washington, DC

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

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

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

16
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Supra note 7 at Chapter 2.805.3a(1) (January 2013).

7


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

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

Docket No. 08-1669
Issued: February 18, 2009

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 22, 2007 and February 28, 2008 merit decisions concerning
his entitlement to schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a nine percent permanent impairment of his left arm, for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that by late 2004 appellant, then a 52-year-old letter carrier, had
sustained bilateral shoulder tendinitis and bilateral shoulder impingement due to the performance
of his job duties over time. On September 9, 2005 Dr. Perm Parmar, an attending Boardcertified orthopedic surgeon, performed several left shoulder procedures, including a
subacromial decompression, distal clavicle excision and debridement of the superior labrum and

a partial thickness tear of the articular surface of the rotator cuff. The surgery was authorized by
the Office.
On July 14, 2006 Dr. George Varghese, Board-certified in physical medicine and a
rehabilitation physician, who served as an Office referral physician, determined that appellant
had a nine percent permanent impairment of his left arm. He found that this impairment was
based on limited active motion of his left shoulder, including four percent impairment for 120
degrees of flexion, two percent impairment for 130 degrees of abduction, one percent
impairment for 40 degrees of external rotation and two percent impairment for 55 degrees of
internal rotation.1 Dr. Varghese indicated that he applied the standards of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) and determined
that appellant had reached maximum medical improvement by July 14, 2006.
In a December 21, 2006 decision, the Office granted appellant a schedule award for a
nine percent permanent impairment of his left arm. The award ran for 28.08 weeks from
November 17 to July 14, 2006.2
On January 1, 2007 Dr. Scott R. Luallin, a Board-certified orthopedic surgeon, who
served as an Office referral physician, concluded that appellant had a 26 percent impairment of
his left arm.3 He determined that appellant had a 15 percent impairment based on limited active
motion of his left shoulder, including a 4 percent impairment for 124 degrees of flexion, a 1
percent impairment for 38 degrees of extension, a 4 percent impairment for 90 degrees of
abduction, a 1 percent impairment for 22 degrees of adduction, a 1 percent impairment for 32
degrees of external rotation and a 4 percent impairment for 30 degrees of internal rotation.
Dr. Luallin also asserted that appellant had 13 percent impairment for strength loss in his left arm
under Chapter 16.8 of the A.M.A., Guides. He used the Combined Values Chart of the A.M.A.,
Guides to combine the limited motion and strength loss values and concluded that appellant had
a 26 percent permanent impairment of his left arm.
In a May 14, 2007 decision, an Office hearing representative affirmed the Office’s
December 21, 2006 decision.4

1

Dr. Varghese indicated that appellant’s strength was normal and noted that his pain was considered secondary to
range of motion limitation and did not warrant a separate rating.
2

The Office also granted appellant a schedule award for a 10 percent permanent impairment of his right arm.
The matter of appellant’s entitlement to schedule award compensation for his right arm is not currently before the
Board.
3

The Office indicated that Dr. Luallin served as an impartial medical specialist but he actually served as an
Office referral physician because there was no conflict in the medical evidence at the time of the referral. Section
8123(a) of the Federal Employees’ Compensation Act provides in pertinent part: “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 U.S.C. § 8123(a).
4

The Office hearing representative did not consider Dr. Luallin’s January 1, 2007 report despite the fact that it
had been submitted to the Office prior to the issuance of the May 14, 2007 decision.

2

On July 20, 2007 Dr. Parmar indicated that appellant had a 10 percent impairment of his
left arm, under Figure 16-27 of the A.M.A., Guides, due to his isolated distal clavicle excision
and noted that he also had 10 percent impairment due to the resection arthroplasty of his
acromion which was “different than the resection of his distal clavicle.” He stated that appellant
had five percent impairment due to limited left shoulder motion comprised of two percent
impairment due to 145 degrees of flexion,5 two percent impairment due to 140 degrees of
abduction and one percent impairment due to decreased limited internal motion.6 Dr. Parmar
noted that appellant had four percent impairment for decreased strength in his left shoulder under
Chapter 16.8c of the A.M.A., Guides. He indicated that he used the Combined Values Chart to
combine these impairment values and concluded that appellant had a 27 percent impairment of
his left arm.
On October 5, 2007 Dr. Daniel D. Zimmerman, a Board-certified orthopedic surgeon
who served as an Office medical adviser, posited that the January 1, 2007 report of Dr. Luallin
and the July 20, 2007 report of Dr. Parmar did not show that appellant has more than a nine
percent permanent impairment of his left arm. He indicated that there was no basis under Table
16-27 of the A.M.A., Guides to award appellant a 10 percent impairment rating for the resection
arthroplasty of his acromion and asserted that Dr. Parmar did not adequately explain why
appellant had a 4 percent impairment for decreased strength in his left shoulder under the
standards of the A.M.A., Guides.7 Dr. Zimmerman also indicated that Dr. Luallin did not
adequately explain why appellant had 13 percent impairment for decreased strength in his left
shoulder. With respect to Dr. Luallin’s range of motion findings, he stated, “The figures relevant
for ROM [range of motion] assessment using the ROM by Dr. Luallin on January 1, 2007
compared to the vastly more normal ROM by Dr. Parmar on July 20, 2007 must lead to the
conclusion that the ROM reported to have been measured by Dr. Luallin on January 1, 2007
cannot represent this claimant’s status at such time as [maximum medical improvement] had
occurred.”
In an October 22, 2007 decision, the Office affirmed its prior decisions regarding
appellant’s left arm impairment. It determined that the January 1, 2007 report of Dr. Luallin and
the July 20, 2007 report of Dr. Parmar did not show that appellant has more than a nine percent
permanent impairment of his left arm. The Office cited Dr. Zimmerman’s October 5, 2007
report in discounting Dr. Luallin’s range of motion findings.
On December 20, 2007 Dr. Lowry Jones, Jr., an attending Board-certified orthopedic
surgeon, indicated that appellant had an 8 percent impairment due to loss of strength in his left
arm and a 10 percent impairment for his isolated distal clavicle resection. Regarding the range
of motion of appellant’s left shoulder, he stated, “He showed maximum passive flexion to 110
5

This measurement would actually equal three percent impairment as it falls halfway between the designated
values for impairment in Figure 16-40. See A.M.A., Guides 476, Figure 16-40; see Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.b (June 2003); Carolyn E. Sellers, 50 ECAB 393,
394 (1999).
6

Dr. Parmar did not provide a measurement for internal rotation.

7

Dr. Zimmerman also indicated that appellant could not receive impairment ratings for both range of motion and
strength losses. See A.M.A., Guides 526, Table 17-2.

3

degrees with a fixed end point. Dr. Jones showed maximum abduction measured with a
goniometer, again at 85 degrees with fixed end point. He has fixed external rotation limited to
10 degrees of external on the left side as compared to his 45 degrees of external rotation in a
adducted position on his right side.8 Dr. Jones concluded that using the Combined Values Chart
to combine these various impairments meant that appellant had a 26 percent permanent
impairment of his left arm.
On February 16, 2008 Dr. Zimmerman stated that the range of motion measurements of
appellant’s left shoulder were not valid as it was unclear whether Dr. Jones obtained active
(rather than passive) measurements as required by the A.M.A., Guides. He also indicated that
Dr. Jones did not adequately explain why appellant had eight percent impairment due to loss of
strength in his left arm.
In a February 28, 2008 decision, the Office affirmed its prior decisions regarding
appellant’s left arm impairment. It indicated that the December 20, 2007 report of Dr. Jones did
not show that he had more than a nine percent permanent impairment of his left arm.
LEGAL PRECEDENT
The schedule award provision of the Act9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.11
The period covered by a schedule award commences on the date that the employee reaches
maximum medical improvement from the residuals of his employment injury and maximum
medical improvement means that the physical condition of the injured member has stabilized and
will not improve further.12
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.13

8

Dr. Jones concluded that these values equaled 11 percent impairment under the standards of the A.M.A., Guides.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

11

Id.

12

James Kennedy, Jr., 40 ECAB 620, 626 (1989); Neil Papkin, 39 ECAB 239, 243 (1987).

13

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

4

ANALYSIS
The Office accepted that appellant sustained employment-related bilateral shoulder
tendinitis and bilateral shoulder impingement. On September 9, 2005 Dr. Parmar, an attending
Board-certified orthopedic surgeon, performed a subacromial decompression, distal clavicle
excision and debridement of the superior labrum and a partial thickness tear of the articular
surface of the rotator cuff. In a December 21, 2006 decision, the Office granted appellant a
schedule award for a nine percent permanent impairment of her left arm. In October 22, 2007
and February 28, 2008 decisions, it determined that appellant had not shown entitlement to
greater schedule award compensation for his left arm.
The record contains a July 20, 2007 report in which Dr. Parmar concluded that appellant
had a 27 percent impairment of his left arm. The Board notes that the Office correctly found that
Dr. Parmar did not adequately explain in his July 20, 2007 report why appellant had four percent
impairment for decreased strength in his left shoulder under the standards of the A.M.A.,
Guides.14 The Office also correctly noted that Dr. Parmar improperly found in this report that
appellant had a 10 percent impairment rating for the resection arthroplasty of his left acromion.
The A.M.A., Guides does not provide for such a diagnosis-based rating.15 However, Dr. Parmar
did properly find that appellant had a 10 percent impairment of his left arm due to his isolated
distal clavicle excision.16 He found range of left shoulder motion losses which were lower than
those previously found and it should be noted that range of motion losses cannot be combined
with diagnosis-based losses (such as the 10 percent rating based on the clavicle excision).
Therefore, Dr. Parmar’s findings at best show that appellant would have 10 percent impairment
due to his clavicle excision.
In a December 20, 2007 report, Dr. Jones, an attending Board-certified orthopedic
surgeon, concluded that appellant had a 26 percent permanent impairment of his left arm. The
Office correctly questioned the validity of the range of motion measurements of appellant’s left
shoulder obtained on December 20, 2007 by Dr. Jones. They were not valid as it does not appear
that Dr. Jones obtained active range of motion measurements as required by the A.M.A.,
Guides.17 The Office also properly indicated that Dr. Jones did not adequately explain why
appellant had an eight percent impairment due to loss of strength in his left arm. Dr. Jones did
properly find that appellant had a 10 percent impairment of his left arm due to his isolated distal
clavicle excision and at best his report would show that he had this level of impairment.
Therefore, as appellant would at least be entitled to a 10 percent impairment rating due to
his clavicle excision, there is some evidence that he has more than a 9 percent permanent
14

It is unclear whether Dr. Parmar carried out manual muscle testing in accordance with the A.M.A., Guides and
applied the relevant standards. A.M.A., Guides 510, Table 16-35. The Board notes that even if a decreased loss of
strength rating were established it could not be combined with a range of motion or diagnosis-based rating loss. See
A.M.A., Guides 526, Table 17-2.
15

See A.M.A., Guides 506, Table 16-27.

16

Id.

17

See id. at 476.

5

impairment of his left arm. Moreover, there is medical evidence which suggests that appellant
has an even greater impairment of his left arm based on limited left shoulder motion alone.18 On
January 1, 2007 Dr. Luallin, a Board-certified orthopedic surgeon who served as an Office
referral physician, determined that appellant had a 15 percent impairment based on limited active
motion of his left shoulder, including a 4 percent impairment for 124 degrees of flexion, a 1
percent impairment for 38 degrees of extension, a 4 percent impairment for 90 degrees of
abduction, a 1 percent impairment for 22 degrees of adduction, a 1 percent impairment for 32
degrees of external rotation and a 4 percent impairment for 30 degrees of internal rotation.
The Board notes that the Office improperly discounted the range of motion findings of
Dr. Luallin.19 The Office found, based on a report of an Office medical adviser, that the findings
were invalid because appellant had been deemed to have reached maximum medical
improvement and the findings of Dr. Parmar (obtained about six months after those of
Dr. Luallin) showed lesser range of motion losses. Maximum medical improvement means that
the physical condition of the injured member has stabilized and will not improve further but
reaching maximum medical improvement does not preclude that the impairment of a given member
might worsen.20 Moreover, the Office did not adequately explain why it felt that Dr. Parmar’s
findings presented a more accurate picture of range of motion impairment than those of Dr. Luallin.
The Office had specifically referred appellant to Dr. Luallin for further evaluation. As noted
above, it shares responsibility in the development of the evidence.21 The record contains
evidence which shows that appellant has impairment of his left arm which is some degree greater
than the nine percent impairment for which he has been compensated. Therefore, the case
should be remanded to the Office for further development to be followed by an appropriate
decision regarding the permanent impairment of his left arm.
CONCLUSION
The Board finds that the case is not in posture regarding whether appellant met his
burden of proof to establish that he has more than a nine percent permanent impairment of his
left arm, for which he received a schedule award. The case is remanded to the Office for further
development.

18

The A.M.A., Guides does not allow the combination of range of motion and diagnosis-based losses. See
A.M.A., Guides 526, Table 17-2. If appellant’s impairment based on limited motion alone were higher than 10
percent, the evaluator would base appellant’s impairment on a limited motion rating rather than a diagnosed-based
rating.
19

However, the Office properly found that Dr. Luallin did not adequately explain why appellant had 13 percent
impairment for strength loss in his left arm under the A.M.A., Guides.
20

See supra note 12 and accompanying text.

21

See supra note 13 and accompanying text.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 28, 2008 and October 22, 2007 decisions are set aside and the case remanded to the
Office for further proceedings consistent with this decision of the Board.
Issued: February 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Oklahoma City, OK, Employer
__________________________________________

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Appearances:
Lisa Head, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1181
Issued: December 8, 2011

Case Submitted on the Record

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

JURISDICTION
On March 31, 2011 appellant, through his representative, filed a timely appeal of the
October 7, 2010 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration. Because more than one year elapsed between the most
recent merit decision dated July 18, 2007 to the filing of this appeal, the Board lacks jurisdiction
to review the merits of this case pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.2

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued on October 7, 2010 the 180-day computation begins on October 8, 2010. 180 days from October 8, 2010
was April 5, 2011. Since using April 6, 2011, the date the appeal was received by the Clerk of the Board, would
result in the loss of appeal rights, the date of the postmark is considered the date of filling. The date of the U.S.
Postal Service postmark is March 31, 2011, which renders the appeal timely filled. See 20 C.F.R. § 501.3(f)(1).
2

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits as untimely filed and lacking clear evidence of error.
On appeal, counsel contends that the medical evidence of record established that
appellant sustained an employment-related injury. Appellant further contends that he relied on
the incorrect advice of a supervisor regarding the filing of his occupational disease claims (Form
CA-2) and did not timely respond to OWCP’s request for additional evidence.
FACTUAL HISTORY
On May 23, 2007 appellant, then a 54-year-old automated flat sorter, filed an
occupational disease claim, Form CA-2, alleging that his right shoulder condition was caused by
repetitive reaching, casing mail, pushing postcons and lifting heavy trays and tubs filled with
mail in the performance of duty.
By letter dated June 4, 2007, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional supporting evidence. It also requested
that the employing establishment submit evidence in response to appellant’s claim.
Medical records from Dr. John W. Ellis, an attending Board-certified family practitioner,
and Dr. Glenn L. Smith, an orthopedic surgeon, dated March 20, 27 and May 22, 2007 advised
that appellant could work with no restrictions.
In a July 18, 2007 decision, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that he sustained an injury causally related to the established
work-related duties.
On September 9, 2010 appellant requested reconsideration. In a September 9, 2010
letter, he contended that a detailed report from Dr. Ellis related his job duties to his claimed right
shoulder injury. Appellant believed that his claim had been accepted which was assured by
Dr. Ellis who also continued to treat him. He experienced a great deal of pain due to the rotator
cuff tear in his right shoulder which required surgery. Appellant was deaf which made it
difficult for him to navigate certain aspects of his life. He relied on his supervisors, including
Mike Morris, a supervisor of distribution operations, physicians and Ms. Head, a congressional
staff member, to navigate the workers’ compensation process.
Appellant submitted medical reports from Dr. Ellis. In reports dated May 22, 2007
through December 9, 2009, Dr. Ellis obtained a history of appellant’s work duties and prior
employment-related injury. He listed his findings on physical examination and advised that
appellant had a strain, bicipital tendinitis, impingement syndrome, adhesive capsulitis and an 80
percent thickness partial undersurface supraspinatus tendon tear of the right shoulder due to the
established work duties. Dr. Ellis was restricted to left-hand work only. In a partially illegible
report, he stated that a magnetic resonance imaging (MRI) scan of appellant’s right shoulder
showed degenerative changes. It was very likely that pushing and pulling a cart could aggravate
existing problems in the shoulder. Dr. Ellis stated that another right shoulder MRI scan was

2

performed due to continued symptoms. It also revealed an 80 percent tear of the supraspinatus
tendon. Dr. Ellis concluded that this condition was caused by nontreatment. In a July 14, 2008
certification of health care provider for Family and Medical Leave Act (FMLA), he reiterated his
prior diagnosis of right shoulder impingement syndrome. This condition commenced on
April 24, 2007.
In disability certificates dated July 10, 2007 through April 21, 2009, Dr. Ellis advised that
appellant could return to work with restrictions.
On April 7 and July 14, 2008 Dr. Ellis ordered physical therapy to treat appellant’s right
shoulder impingement syndrome.
Treatment notes dated May 22, 2007 to June 16, 2009 and a September 23, 2008 letter
from physician’s assistants in Dr. Ellis’ office addressed appellant’s right hand and shoulder pain
and work restrictions.
In a December 4, 2007 report, Dr. A. Christopher Degner, a Board-certified radiologist,
advised that an MRI scan of appellant’s right shoulder demonstrated degenerative changes at the
acromioclavicular (AC) joint and humeral head and tendinoisis of the supraspinatus tendon
without a full thickness tear. On November 18, 2009 Dr. Aldo A. Battiste, a Board-certified
radiologist, stated that a right shoulder MRI scan revealed an 80 percent thickness partial
undersurface supraspinatus tendon tear, a small amount of fluid in the subacrominal subdeltoid
bursa, mild lateral down sloping of acromion and ACL hypertrophy that may narrow the
supraspinatus outlet and mild thinning of glenohumeral articular cartilage.
In a January 15, 2008 certification of health care provider for the FMLA, Joe Beasley, a
physician’s assistant, stated that appellant had right wrist carpal tunnel syndrome that
commenced on May 18, 2002 and right shoulder impingement syndrome that commenced on
April 24, 2007. Appellant was able to work with his current restrictions.
Reports from Christa Gatewood, a physical therapist, addressed appellant’s treatment
from January 15 to June 4, 2008. In a July 9, 2008 report signed and certified by Dr. Ellis,
Ms. Gatewood measured the range of motion of appellant’s right upper extremity. She stated
that appellant’s ongoing right shoulder pain was most likely due to inflammation on the biceps
tendon and rotator cuff although it did not appear that he had a rotator cuff tear.
A July 1, 2010 report from Dr. Tom W. Ewing, a Board-certified osteopath, obtained a
history of the accepted work duties and reviewed appellant’s diagnostic results. Dr. Ewing listed
his findings on physical examination of the right shoulder and diagnosed a partial thickness tear
of the rotator cuff, bicipital tendinitis, impingement syndrome and ACL hypertrophy secondary
to repetitive trauma. He opined that the diagnosed conditions were caused by the accepted
employment duties.
In a letter dated November 21, 2008, Mr. Morris described appellant’s work duties as an
automated flat sorter.

3

By decision dated October 7, 2010, OWCP denied appellant’s September 9, 2010 request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated July 18, 2007.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of OWCP’s decision as
a matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Section 10.607(a) of its implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by it in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.12 The
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

4

Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.13
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. Its
regulations and procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original OWCP decision.14 However, a right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
The most recent merit decision in this case was OWCP’s July 18, 2007 decision which
found the medical evidence insufficient to establish that appellant sustained a right shoulder
injury causally related to the established work duties. As appellant’s September 9, 2010 letter
requesting reconsideration of the merits of his claim by OWCP was more than one year after the
July 18, 2007 merit decision,16 the Board finds that it was not timely filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP. In his September 9, 2010 reconsideration request, appellant asserted that an
unidentified report from Dr. Ellis, who assured him that his claim had been accepted, established
that he sustained an employment-related injury. He complained that the pain in his right
shoulder was due to a rotator cuff tear that warranted surgery. While appellant addressed the
nature of his injury, the Board finds that his general allegations do not raise a substantial
question as to the correctness of OWCP’s denial of his claim. The Board notes that the
underlying issue in this case is medical in nature and the opinion of a lay person cannot be
considered to be probative medical evidence.17 Although appellant contended that his delay in
the filing a request for reconsideration was due to his hearing loss condition which required him
to rely on assistance from others to navigate the workers’ compensation process, such a reason
will not excuse a failure to file a request for reconsideration within the one-year time limit of
OWCP’s regulations and procedures.18 The Board has held that the regulatory language is
unequivocal in setting forth the time limit and does not indicate that the late filing may be
excused by extenuating circumstances.19 The Board finds that appellant’s arguments on

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

15

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

16

Appellant had one year to request reconsideration by OWCP of its July 18, 2007 decision. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
17

See Sheila Arbour (Victor E. Arbour), 43 ECAB 779 (1992).

18

20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.6a (January 2004).
19

Donald Jones-Booker, 47 ECAB 785 (1996).

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reconsideration are insufficient to raise a substantial question concerning the correctness of
OWCP s denial of his claim or to shift the weight of the evidence in his favor.
Moreover, the medical evidence relied upon by appellant in his reconsideration request is
insufficient to establish clear error on the part of OWCP. The reports from Dr. Ellis found that
appellant’s right shoulder strain, bicipital tendinitis, impingement syndrome, adhesive capsulitis
and partial supraspinatus tendon tear were caused by the established work duties. While
Dr. Ellis’ reports support a causal relationship between the claimed right shoulder condition and
established work-related activities, they do not demonstrate clear evidence of error or raise a
substantial question as to the correctness of OWCP’s decision. He did not provide any medical
opinion explaining how the established work duties caused the diagnosed conditions. Dr. Ellis’
disability certificates found that appellant was able to return to work with restrictions from
July 10, 2007 through April 21, 2009. He did not provide a diagnosis or address the relevant
issue of whether appellant sustained a medical condition causally related to the established work
duties. Dr. Ellis’s April 7 and July 14, 2008 prescriptions ordered physical therapy to treat
appellant’s right shoulder impingement syndrome. This evidence contained no opinion on the
work relatedness of the diagnosed condition.
Similarly, the July 9, 2008 report of
Ms. Gatewood, a physical therapist, which constitutes probative medical evidence as it was
signed and certified by Dr. Ellis, a qualified physician,20 did not provide an opinion addressing
causal relation between appellant’s ongoing right shoulder pain and accepted employmentrelated duties. Evidence that is not germane to the issue on which the claim was denied is
insufficient to demonstrate clear evidence of error.21 Further, the Board notes that pain is a
symptom, not a compensable medical diagnosis.22 For the reasons stated, the Board finds that
the reports of Dr. Ellis and Ms. Gatewood are insufficient to prima facie shift the weight of the
evidence in favor of appellant’s claim.
The Board further finds that Ms. Gatewood’s other reports and those of physician’s
assistants are of no probative value as they are not signed by a physician and, thus, do not
constitute probative medical evidence.23
Dr. Ewing’s July 1, 2010 report found that appellant’s right shoulder partial thickness
tear of the rotator cuff, bicipital tendinitis, impingement syndrome and ACL hypertrophy were
caused by the established work duties. He did not provide any medical opinion explaining how
the established work duties caused the diagnosed conditions. The Board finds, therefore, that
Dr. Ewing’s report is insufficient to establish clear evidence of error on the part of OWCP in the
July 18, 2007 decision.

20

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law).
21

F.R., Docket No. 09-575 (issued January 4, 2010).

22

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

23

5 U.S.C. § 8101(2); see David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physical therapists
and physician’s assistants are not competent to render a medical opinion under FECA).

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None of the other evidence submitted by appellant on reconsideration raised a substantial
question as to the correctness of OWCP’s denial of his claim as it did not provide a medical
opinion addressing the relevant issue of whether he sustained a right shoulder condition due to
the established work duties.24
The Board finds that the arguments and evidence submitted by appellant in support of his
untimely request for reconsideration does not constitute positive, precise and explicit evidence,
which manifests on its face that OWCP committed an error. Therefore, appellant failed to meet
his burden of proof to show clear evidence of error on the part of OWCP.
Although counsel contended on appeal that, appellant sustained an injury causally related
to the established work duties, the medical evidence, as discussed above, was not sufficient to
shift the weight of the evidence in his favor and raise a substantial question as to the correctness
of OWCP’s decision.
Similarly, appellant’s contention that his request for reconsideration was not timely filed
due to his reliance on incorrect advice regarding the filing of CA-2 forms from a supervisor, as
discussed above, was not sufficient to shift the weight of the evidence in his favor and raise a
substantial question as to the correctness of OWCP’s denial of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

24

F.R., supra note 21.

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ORDER
IT IS HEREBY ORDERED THAT the October 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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