United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redondo Beach, CA, Employer
__________________________________________

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

Docket No. 09-377
Issued: September 18, 2009

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 November 21, 2008 appellant filed a timely appeal from the October 3, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury causally related to factors of his federal employment.
FACTUAL HISTORY
On February 1, 2008 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim for recurring right knee pain. He first became aware of his condition on
December 8, 2006 when he twisted his knee while delivering mail. Appellant realized his knee
condition was caused or aggravated by his work on January 14, 2008. In an undated letter, he
stated that on December 8, 2006 he over stepped and dropped on his right knee while delivering

mail. The knee pain was initially manageable but it persisted when he had to carry heavy parcels
and bulk mail. On August 13, 2007 appellant had difficulty walking due to knee pain and called
his supervisor for help as he could not finish his route. On January 14, 2008 he twisted his right
knee again while delivering mail.
On February 11, 2008 the Office notified appellant that the evidence was insufficient to
establish his claim. It requested a medical report containing an opinion of a physician relating
his knee condition to the work duties in his federal employment. No additional information from
appellant was received.
By decision dated May 7, 2008, the Office denied appellant’s claim. It found that the
claimed exposures and events occurred but no medical evidence was received which related his
knee condition to his federal employment.
Appellant requested reconsideration on August 4, 2008. He submitted medical reports
from Kaiser Permanente.1 In a December 9, 2006 chart note, Dr. Kathleen F. Schweickhardt, an
internist, noted that appellant was a letter carrier who drove two hours to work each day. She
listed his complaints of right knee and left hand and thumb pain for one and a half weeks and
bursal tenderness in the right shoulder. Dr. Schweickhardt diagnosed right anserine bursitis. On
August 13, 2007 Dr. Raul R. Prieto, a Board-certified family practitioner, noted appellant’s
complaint of intermittent right knee pain for several months and that he worked as a letter
carrier. He diagnosed right knee strain and probable mild meniscal deterioration. On August 29,
2007 Dr. Sangeeta K. Aggarwal, a Board-certified internist, noted that appellant initially
experienced knee pain in December 2006 without a specific injury, although he had tripped at
work before. No specific diagnosis was provided.
On September 8, 2007 Dr. Corine A. Yee, Board-certified in diagnostic radiology,
advised that August 29, 2007 right knee x-rays revealed mild to moderate narrowing of the
medial compartment and minimal spurring. She listed an impression of mild osteoarthritic
changes. On October 9, 2007 Dr. Ani Darakjian, Board-certified in diagnostic radiology, stated
that a September 25, 2007 magnetic resonance imaging (MRI) scan showed a complex tear of the
posterior horn of the medial meniscus extending into the body of the meniscus, degeneration of
the lateral meniscus without tear, and possible bone bruise of the anteromedial tibial plateau
related to recent trauma. He advised that edema related to degenerative changes was less likely.
An October 23, 2007 report from Dr. Ralph Dilibero, Board-certified in diagnostic radiology,
reiterated the findings noted by Dr. Darakjian.
In a January 24, 2008 report, Dr. William W. Gow, a Board-certified orthopedic surgeon,
noted that appellant was a mail carrier who reported a history of right knee pain for several
months which he attributed to walking on his route. The pain was primarily medial and
arthroscopic surgery was recommended. Dr. Gow diagnosed a right knee torn medial meniscus.
A progress note of February 29, 2008 noted medial joint line tenderness of the right knee.

1

Appellant also submitted medical reports which addressed other medical conditions not subject to the current
claim.

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In a February 4, 2008 report, Dr. Jimmie S. Kung, a Board-certified physiatrist, noted that
appellant was a mailman who was originally injured on December 8, 2006 when he twisted his
right knee and fell forward while delivering mail. Appellant had chronic moderate to mild pain
since December 8, 2006 which was associated with prolonged walking. Dr. Kung noted that
appellant’s primary diagnosis was internal derangement of knee. He listed findings on physical
examination and diagnosed right meniscus tear. Dr. Kung placed appellant on modified duty
with restrictions for six weeks from February 1 through March 7, 2008. In progress reports of
April 14, May 20 and July 1, 2008, he continued appellant on modified duty.
In an October 3, 2008 decision, the Office denied the claim finding that the medical
evidence was insufficient to establish that appellant’s right knee condition was work related. It
found the medical evidence was insufficient to establish that appellant’s condition was causally
related to either an employment incident on December 8, 2006 or January 14, 2008 or any other
factor of his federal employment.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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 employee.5

2

Appellant submitted additional evidence after the Office issued the October 3, 2008 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision. 20 C.F.R
§ 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Therefore, this
new evidence cannot be considered by the Board on appeal. Appellant may submit this evidence to the Office,
together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
3

5 U.S.C. §§ 8101-8193.

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004). See also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (2000). Occupational disease or illness means a condition produced by the work environment
over a period longer than a singe workday or shift. Traumatic injury means a condition of the body caused by a
specific event or incident, or a series of events or incidents, within a single workday or shift.
5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

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Causal relationship is a medical issue, and the medical evidence opinion required to
establish a causal relationship is rationalized medical evidence.6 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.7 The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8 Neither the
mere fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish causal relationship.9
ANALYSIS
Appellant alleged that his right knee condition started on December 8, 2006 when he
twisted his knee and fell forward landing on it. Thereafter, his knee condition gradually
worsened over time with walking and carrying mail on his postal route. Appellant noted that he
was unable to finish his route by August 13, 2007. In the October 2, 3008 decision, the Office
noted that it appeared appellant was claiming two discreet traumatic incidents at work.
However, the record supports that appellant alleged that his right knee condition developed over
a period of more than two work shifts. This is consistent with an occupational disease claim
rather than a traumatic injury of December 8, 2006 or January 14, 2008.10 The decision of the
Office will be modified to reflect that appellant’s claim is one of occupational disease.
The Board finds that the medical evidence is insufficient to establish that appellant’s right
knee condition is causally related to factors of his federal employment. The treatment records
from Kaiser Permanente are insufficient to establish that his knee condition was caused or
aggravated by the walking required on his postal route.
On December 9, 2006
Dr. Schweickhardt noted complaint of right knee pain for one and half weeks. She did not
address or explain how this related to appellant’s work duties. On August 29, 2007
Dr. Aggarwal also noted a history of knee pain since December 2006. However, she did not
provide a diagnosis of appellant’s knee condition or address how it was related to his federal
employment. On August 13, 2007 Dr. Prieto noted that appellant worked as a letter carrier and
had a complaint of gradually worsening intermittent right knee pain. He diagnosed right knee
strain and probable mild meniscal deterioration. Dr. Prieto did not explain how appellant’s work
duties as a letter carrier would contribute to the diagnosed condition. Dr. Kung obtained a
history of appellant twisting his knee and falling forward on December 8, 2006 and indicated that
he had chronic moderate to mild pain since that date associated with walking, carrying and
6

M.W., 57 ECAB 710 (2006).

7

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

8

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

9

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

10

See supra note 4. See also Roy L. Humphrey, 57 ECAB 238 (2005).

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prolonged walking. He diagnosed a right meniscus tear. Dr. Kung did not provide a fullyrationalized medical opinion explaining how appellant’s employment activities caused or
contributed to the diagnosed meniscus tear or internal derangement.11
On January 24, 2008 Dr. Gow attributed appellant’s knee pain to walking and opined that
his torn medial meniscus was “likely some related to work.” However, this opinion is not well
explained and appears speculative in nature. There is insufficient discussion by the physician as
to how the work duties appellant performed, such as walking, caused or contributed to the
diagnosed meniscus condition. Medical reports containing insufficient rationale on causal
relation are of diminished probative value.12 The diagnostic x-ray and MRI scan studies are
insufficient to establish appellant’s claim as the physicians did not provide any opinion on the
relationship between the conditions found to appellant’s workplace exposure to walking a postal
route.
The Board has held that the mere fact that a disease manifests itself during a period of
employment does not raise an inference of causal relationship between the two.13 Neither the
fact that the condition became apparent during a period of employment nor the belief of
appellant that his condition was caused or aggravated by his employment is sufficient to establish
causal relation.14 This is a medical question. A medical report is not probative simply because it
is from a physician. To be probative, a physician’s opinion must be based on a complete and
accurate factual history, expressed in terms of a reasonable degree of medical certainty and
supported by rationale explaining the nature of the relationship between the diagnosed condition
and specific employment factors.15 The evidence submitted does not contain a reasoned opinion
from any of the attending physician’s addressing how the incidents and exposure to walking at
work resulted in the diagnosed right knee torn meniscus. Appellant has not established that he
sustained an occupational injury.

11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

Robert Broom, 55 ECAB 339 (2004); Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

13

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

14

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007).

15

See Larry D. Dunkin, 56 ECAB 220 (2004).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish his
occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the October 3 and May 7, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: September 18, 2009
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

__________________________________________
J.M., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1679
Issued: June 11, 2009

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 May 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 31, 2007 merit decision, denying his claim for a recurrence, and a
December 6, 2007 nonmerit decision denying merit review. 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 established that he sustained a recurrence on
January 13, 2007 causally related to his September 2, 2000 work injury; and (2) whether the
Office properly refused to reopen his case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On September 2, 2000 appellant, then a 35-year-old wiper, injured his lower back while
lowering a heavy ship-to-shore power cable. He subsequently left federal service and on
March 19, 2001 began working as an oilier for Washington State Ferries. On July 25, 2002 the

Office accepted appellant’s claim for a herniated L4-5 disc.1 The record reveals that he reached
the maximum medical improvement for his back injury some time prior to November 2004. On
March 24, 2006 appellant’s case was administratively closed due to medical inactivity since
August 23, 2005.
On January 24, 2007 appellant was treated by Dr. Michael McManus, Board-certified in
occupational medicine, for chronic mechanical low back pain. He claimed that 10 days prior he
experienced immediate pain and tightness while greasing his tractor at home. Appellant
attempted to self-treat his pain before seeking treatment at an urgent care facility. Dr. McManus
diagnosed an aggravation of chronic mechanical low back pain with spondylosis, degenerative
disease, and probable mild spondylolisthesis with spondylosis and right disc protrusion. He
noted that appellant’s condition was work related. X-rays taken on January 25, 2007 revealed a
degenerative change in appellant’s lower lumbar spine with slight disc narrowing.
In a February 7, 2007 medical report, Dr. McManus noted a worsening of appellant’s
condition and diagnosed recurrent aggravation of chronic mechanical low back pain with
spondylosis, possible mild spondylosthesis, right paracentral disc protrusion and mild right
radicular symptoms. He again noted that appellant’s condition was work related.
On April 27, 2007 appellant filed a claim for a recurrence of his September 2, 2000
employment injury, requesting only medical treatment. He listed January 13, 2007 as the date of
recurrence, explaining that he greased his tractor in the backyard and a short time later he could
not stand up straight due to severe back pain. Appellant alleged that, after returning to work, his
condition had been irregular and that he experienced episodes of back pain from bending, lifting,
sitting or standing for long periods of time.
In a medical report dated March 30, 2007, Dr. McManus requested that the Office reopen
appellant’s case. After describing appellant’s accepted work injury and diagnosis, he stated that
appellant had recently aggravated his low back condition.
In response to an April 27, 2007 Office letter requesting additional information,
Dr. McManus submitted a medical report dated May 4, 2007. He noted that appellant was
originally injured on September 2, 2000 resulting in permanent aggravation of lumbosacral
spondylosis and degenerative disease with L4-5 and L5-S1 disc protrusions and mild instability.
Dr. McManus stated that appellant was predisposed to recurrent injuries, including spondylosis,
degenerative disease and disc protrusions, as well as intermittent episodes of increased low back
pain and spasms and right lumbar nerve root irritation. Such an episode occurred on January 13,
2007 while appellant was oiling his tractor. Dr. McManus contended that appellant’s present
diagnosis of recurrent aggravation of chronic mechanical low back pain and chronic right lumbar
radiculopathy were due to the progression of the original September 2, 2000 work injury.
In a May 18, 2007 letter, appellant responded to the Office’s April 27, 2007 request for
additional information. He stated that, on January 13, 2007, he was greasing a small yard tractor
1

Appellant filed four claims (Form CA-7) for compensation for the periods October 25 through December 16,
2000, December 31, 2000 through January 18, 2001, January 15 through February 1, 2001 and February 2 through
24, 2001.

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and, while bending at the knees with his hips forward, he felt the same severe pain in his lower
back and right leg as he had experienced on and off since his September 2, 2000 employment
injury. Appellant maintained that he sustained frequent aggravations to his lower back since his
injury, requiring long periods of recovery with no lost time at work or restrictions.
On May 31, 2007 the Office denied appellant’s claim for a recurrence of his accepted
work injury. It found that the January 13, 2007 event materially altered the course of appellant’s
underlying condition and constituted a new aggravation due to factors external of his federal
employment.
Appellant requested reconsideration of the merits of the claim on November 5, 2007. In
an October 22, 2007 letter, he advised that he was submitting new medical records for the period
the Office found his case was inactive. Appellant also alleged that the pain in January 2007 was
an increase in existing pain, not a new onset. He submitted duplicate copies of Dr. McManus’
March 30 and May 4, 2007 medical reports, as well as other records dated March 31, 2006
through July 27, 2007 addressing his continued flare-ups of back pain.
In a June 19, 2007 medical report, Dr. McManus addressed the relationship between
appellant’s current back condition, and the September 2, 2000 work injury. He reported that
appellant’s work injury caused permanent aggravation of his lumbosacral spondylosis and
degenerative disease with disc protrusions and mild instability. Dr. McManus argued that this
condition would predispose appellant to recurrent injuries or aggravations and was a chronic
condition. He noted that appellant aggravated his chronic condition while twisting, bending and
reaching while oiling his tractor on January 13, 2007.
In a December 6, 2007 decision, the Office denied further review of the merits, finding
that appellant did not advance a new legal contention and that the newly submitted evidence was
duplicative, repetitive and irrelevant. It also stated that two medical records documented
intervening events, including lifting a loom and greasing a tractor and, therefore, did not support
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition is defined as “the documented need for further
treatment of the accepted condition when there has been no work stoppage.”2 A claimant who
claims a recurrence of a medical condition due to an accepted employment-related injury has the
burden of establishing by the weight of the substantial, reliable and probative evidence that the
condition for which he claims compensation is causally related to the accepted injury. This burden
of proof requires that an employee furnish medical evidence from a physician, who on the basis of
a complete and accurate factual and medical history, concludes that the medical condition is
causally related to the employment injury and supports that conclusion with sound medical

2

J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006); Mary A. Ceglia, 55 ECAB 626, 629 (2004);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(a) (January 1998).

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reasoning.3 Where no such rationale is present, medical evidence is of diminished probative
value.4
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause attributable to employee’s own intentional conduct.5
ANALYSIS -- ISSUE 1
The issue is whether appellant sustained a recurrence of his accepted condition causally
related to the September 2, 2000 accepted work injury commencing January 13, 2007. The
Board finds this case is not in posture for decision.
Appellant stated that, on January 13, 2007, he was greasing his tractor while bending at
the knees with his hips forward, and experienced a recurrence of his accepted herniated L4-5
disc. He provided medical reports from Dr. McManus dated January 24 through May 4, 2007,
who diagnosed mechanical low back pain with spondylosis, degenerative disease and probable
mild spondylolisthesis with spondylosis and right disc protrusion. Dr. McManus advised that
appellant’s back condition was due to the accepted injury. In the May 4, 2007 medical report, he
discussed appellant’s accepted September 2, 2000 work injury and opined that it predisposed him
to intermittent episodes of increased low back pain and recurrent injury, including spondylosis,
degenerative disease and disc protrusions. Dr. McManus stated that appellant experienced one
of these episodes on January 13, 2007 while oiling his tractor and that his current condition was a
progression of his original September 2, 2000 work injury.
The Board finds that appellant established a prima facie claim that he experienced a
recurrence of his September 2, 2000 employment injury on January 13, 2007.
While
Dr. McManus did not provide a fully rationalized opinion explaining causal relationship, he
consistently indicated that appellant sustained a reaggravation of his accepted medical condition
and that his need for treatment as of January 13, 2007 was related to his accepted herniated disc.
His reports are not contradicted by any substantial medical or factual evidence of record. Thus,
while the medical evidence is not sufficient to meet appellant’s burden of proof to establish his
claim, it raises an uncontroverted inference between the claimed recurrence and the accepted
condition.6
Moreover, the Board finds that appellant’s bending at the knees while greasing his tractor
on January 13, 2007 does not constitute an intervening event. The Board has held that, when the
primary injury is shown to have arisen out of and in the course of employment, every natural
3

See I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138,
1140 (1982).
4

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

See A. Larson, The Law of Workers’ Compensation, § 10.01 (2005); Debra L. Dillworth, 57 ECAB 16 (2006).

6

See Mary A. Wright, 48 ECAB 240 (1996).

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consequence that flows from the injury is deemed to arise out of the employment, unless it is the
result of an independent, intervening cause that is attributable to the employee’s own intentional
conduct. Once the work-connected character of any injury has been established, the subsequent
progression of that condition remains compensable so long as it is clear that the real operative
factor is the progression of the compensable injury, associated with an exertion that would not be
unreasonable under the circumstances.7 Here, appellant experienced a back pain while greasing
his tractor and bending at the knees. It is neither immediately apparent how this activity could be
considered rash or that it was associated with an exertion that would be deemed unreasonable
under the facts presented.
This case is distinguishable from John R. Knox,8 where the employee sustained injury
while playing basketball, which broke the chain of causation concerning his accepted left knee
injury. The Board found that playing basketball was not a reasonable activity in light of
appellant’s left knee condition as the exertion he placed on the knee caused further knee injury,
thereby constituting an independent, intervening cause resulting from his own intentional
conduct.
Similarly, in Robert J. Wescoe,9 appellant played volleyball while on light duty for a
shoulder injury after being advised by his physician that he was prone to shoulder dislocations.
The Board found, citing to Knox, that it was unreasonable for the employee to participate in
playing volleyball in light of the fact that he was advised of his susceptibility to further
dislocations. Thus, the Board held that playing volleyball was an independent, intervening cause
attributable to his own intentional conduct.
Unlike the Knox and Wescoe cases, appellant described bending of the knees while
greasing his tractor. This does not constitute an intervening event that would break the natural
progression of his accepted back injury. There is no evidence of record that this activity was
rash in light of his accepted herniated disc condition, thereby rendering the injury as a result of
his own intentional conduct such that it can be considered an independent, intervening cause.
It is well established that proceedings under the Federal Employees’ Compensation Act
are not adversarial in nature and the Office shares the responsibility in the development of the
evidence.10 The Board finds that the medical evidence is sufficient to require the Office to
further develop the medical evidence. The case will be remanded for further development.11

7

John R. Knox, 42 ECAB 193 (1990).

8

See id.

9

See Robert J. Wescoe, 54 ECAB 162 (2002).

10

See Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).

11

See e.g., Mark A. Cacchione, 46 ECAB 148 (1994); Lourdes Davila, 45 ECAB 139 (1993).

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CONCLUSION
The Board finds that this case is not in posture for decision with regard to whether
appellant sustained a recurrence of his accepted September 2, 2000 medical condition
commencing on January 13, 2007. Given the Board’s findings regarding the merit issue of this
case, it is unnecessary for the Board to consider the nonmerit issue in this case.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 6 and May 31, 2007 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: June 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TRAINING & DOCTRINE COMMAND,
Monterey, CA, Employer
__________________________________________

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

Docket No. 10-2229
Issued: July 26, 2011

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 September 1, 2010 appellant filed a timely appeal from a July 22, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for wage-loss
compensation. Pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
November 4, 2007 through July 3, 2008.
FACTUAL HISTORY
On October 29, 2007 appellant, then a 31-year-old instructor, filed a traumatic injury
claim alleging that on October 26, 2007 she fell down the stairs while at work. She was
1

5 U.S.C. §§ 8101-8193.

hospitalized and the employing establishment stated her last day of employment was October 29,
2007 and that she received one day of continuation of pay.2 OWCP accepted the claim for
contusion of left elbow, contusion of left shoulder region, neck and lumbar sprains and a
concussion without loss of consciousness.
Medical reports from Community Hospital of Monterey, dated October 26 through
November 3, 2007 and diagnostic testing were received. A discharge summary from Dr. Marie
Scherer, a Board-certified internist, listed as final diagnoses mechanical fall/muscular contusion
spasm; major depression/postpartum depression; poly symptomatic symptoms; possible
inflammatory connective tissue; left elbow cellulitis; mild scoliosis; history of left knee surgery
at age three; and urinary tract infections and B12 deficiency. Dr. Scherer related the history of
the work injury and advised that a computerized tomography scan of the head as well as x-rays
of the spine and right pelvis and leg were negative. She advised that appellant was admitted due
to her inability to ambulate due to pain. Dr. Scherer also was evaluated by a psychiatrist due to
her multiple somatic symptoms. She advised that a neurologist felt that most of appellant’s
sensory complaints were psychosomatic.
On April 24 and August 6, 2008 appellant filed Form CA-7 claims for compensation for
wage loss for the period October 30, 2007 through July 3, 2008.
In a February 14, 2008 report, Dr. Paul G. James, a Board-certified orthopedic surgeon,
advised that appellant’s husband asserted that her back pain was due to the fall at work and that
this also caused new right knee pain and an aggravation of old left knee pain. The right knee was
tender but stable and without effusion or crepitus. There was resistance to right knee flexion
beyond 100 degrees. Left knee findings were also noted. Dr. James advised that his findings
were not diagnostic. He stated that the right knee could be internally deranged or may only be
contused “and not significantly injured in any way.” Dr. James recommended a right knee
magnetic resonance imaging (MRI) scan. On August 7, 2008 he noted appellant’s fall at the
workplace on October 26, 2007 and her 11-day hospitalization after the fall. Appellant
complained that her right knee symptoms were the cause of her continuing disability. Dr. James
noted findings for her left knee with changes historically dating to childhood and to previous
surgery. He stated the right knee was generally tender, with difficulty from 5 to 10 degrees
through 110 degrees of flexion, pain on varus-valgus testing, tender on medial and lateral
McMurray testing and tender on patellofemoral testing with subtle swelling. Dr. James
requested authorization for a right knee MRI scan to substantiate if appellant had an injury and
whether treatment was indicated.
In an August 22, 2008 report, Dr. Lisa M. Dwelle, a Board-certified family practitioner,
stated that appellant was totally disabled between October 30, 2007 through July 11, 2008 due to
knee pain, back pain and severe adjustment disorder.
On September 10, 2008 OWCP advised appellant that the claim was temporarily
accepted for a right knee contusion to accommodate Dr. James’ MRI scan request and that a final
decision on the right leg would be made after he provided a further opinion. It stated that she
2

The record reflects appellant had an excepted appointment with a not to exceed date of March 25, 2008. She
was terminated on October 30, 2007 during her probation period due to performance issues.

2

was not entitled to further COP because she was terminated on October 30, 2007 due to
performance reasons. OWCP also advised appellant to submit medical evidence explaining how
her disability was due to the accepted conditions.
In an August 17, 2007 report, Dr. James noted appellant’s left knee pain dated back 25
years to an operation performed for deformity or damage to her left knee. Appellant now
experienced bilateral knee pain. Dr. James noted that she had a baby three months prior with an
increase in knee symptoms over the last year. He presented findings on examination and x-ray
study. Dr. James opined that appellant has significant and advancing osteoarthritis in the left
knee as a result from childhood deformity and surgery and recommended modifications to her
work site, such as moving her teaching location to a ground floor. On January 22, 2008 he stated
that she has a severely arthritic left knee with a symptomatic right leg, which he felt was due to
offloading stresses normally shared with the left knee onto the right knee. On examination the
right knee had no obvious inflammatory or mechanical changes. Dr. James opined the left knee
problem as well as the left leg shortening contributed to the right knee health and comfort and
increased stresses on the back.
In a September 22, 2008 letter, appellant alleged that she was terminated from the
employing establishment not for performance but because she filed an Equal Employment
Opportunity (EEO) complaint for sexual harassment. She sought to transfer and complained of
discrimination. No final determination on appellant’s EEO complaints was received.
In an October 3, 2008 report, Dr. Dwelle noted that Dr. James had retired October 1,
2008 and her orthopedic care was transferred to Dr. Christopher Clevenger, a Board-certified
orthopedic surgeon. She stated that there was no diagnosis regarding appellant’s knees as an
MRI scan had not been obtained. Based on review of Dr. James’ reports, Dr. Dwelle noted that
appellant was unable to walk, bear full weight on her knees or complete activities of daily living.
She indicated that appellant’s knees were deformed, had limited range of motion and were
tender, when examined by Dr. James. Dr. Dwelle opined that appellant had been unable to walk
or work from October 26 to July 3, 2008 and continued to have significant limitations.
In a December 11, 2008 report, Dr. Clevenger noted the history of the October 26, 2007
work-related fall and appellant’s preexisting left knee condition. He noted that her right knee
continued to be her main complaint of pain following her October 26, 2007 fall. An assessment
of left knee degenerative joint disease and right knee contusion was provided. Dr. Clevenger
opined that appellant’s left knee arthritis was not work related. He requested an MRI scan with
respect to the right knee.
On March 18, 2009 appellant underwent a right knee MRI scan that noted a small
effusion, but was otherwise normal.3 On May 21, 2009 she underwent bilateral knee x-rays and,
on May 28, 2009, she underwent a left leg MRI scan.
In a May 22, 2009 physical therapy report, Dr. Ronald N. Chaplan, a Board-certified
orthopedic surgeon, diagnosed left knee congenital knee injury and right knee pain. In a May 22,
2009 report, he noted that appellant had a history of left knee problems dating back to childhood
3

In an April 22, 2009 progress report, Dr. Clevenger indicated that an MRI scan had not been obtained.

3

surgery. Dr. Chaplan noted that she developed increasing problems with her left leg and had a
work-related injury on October 26, 2007, which developed into problems with both knees. He
noted the right knee MRI scan did not reveal any degenerative changes or cartilage tear. On
examination Dr. Chaplan found the right knee essentially normal, with pain to palpation around
the patella and pain with patellar compression. He opined that appellant’s severe left knee
arthritis was exacerbated by the fall at work. Dr. Chaplan further opined that her right knee had
a soft tissue injury that was markedly exacerbated by her inability to walk normally on the left
knee. On May 26, 2009 he noted appellant history, stated that the MRI scan showed trace
effusion of the right knee, but opined the etiology of the right knee pain was unclear.
Dr. Chaplan stated that she could return to modified work May 26, 2009 doing only desk work.
Appellant underwent a left knee MRI scan on June 3, 2009. On June 8, 2009 Dr. Chaplan
diagnosed left knee degenerative joint disease and painful right knee.
In a February 11, 2010 decision, OWCP denied appellant’s claim for wage-loss
compensation from October 30, 2007 to July 3, 2008 on the grounds that the medical evidence
was insufficient to establish disability due to the October 26, 2007 work injury.
Appellant requested a telephonic hearing, which was held May 7, 2010. She testified that
she fell on the stairs at work while moving items from the third floor to the first floor. Appellant
stated that she was fired on October 29, 2007 after filing an EEO sexual harassment complaint.
Her complaint was still pending. Appellant stated that she was unable to work due to injuries
from her fall and that she continued to be treated for her injuries by Drs. Dwelle and Chaplan.
In a December 3, 2008 report, Dr. Dwelle indicated that she saw appellant as a new
patient on September 29, 2007 and appellant was in good health and had only minor ailments.
On her next visit of November 5, 2007 appellant had been discharged from a long hospital stay
and was in pain in her right hip and leg. Dr. Dwelle noted that appellant had extreme workrelated stress, a fall and believed that she was being sexually harassed at work. She stated that it
was clear that the physical pain was exacerbated by the psychological pain of recent work
experiences and appellant’s injuries. Dr. Dwelle indicated that when she next saw appellant on
January 18 and November 3, 2008, appellant was much worse psychologically. She opined that
appellant had suffered a deep physical and emotional trauma. Copies of her treatment notes were
attached.
In a July 22, 2010 decision, OWCP’s hearing representative set aside the February 11,
2010 decision to find appellant entitled to wage-loss compensation from October 26 to
November 3, 2007, the period of her hospitalization.4 The hearing representative otherwise
affirmed the denial of the claim, finding that appellant did not submit sufficient medical evidence
to establish work-related disability after November 3, 2007 due to her accepted conditions. She

4

The hearing representative found that, as appellant was hospitalized for treatment secondary to the fall which
included treatment of the conditions accepted by OWCP, her hospitalization must be considered at least in some part
due to the accepted conditions.

4

also found that appellant did not present evidence of a work-related emotional condition as a
consequence of the October 26, 2007 injury.5
LEGAL PRECEDENT
For each period of disability claimed, an employee has the burden of establishing that he
was disabled for work as a result of the accepted employment injury.6 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability, are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.7 The Board will not require OWCP to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
To meet her burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).12 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must

5

Regarding appellant’s claims of management harassment, OWCP’s hearing representative noted that appellant
could file a separate emotional condition claim if she wished to pursue the matter.
6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
10

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

Merle J. Marceau, 53 ECAB 197 (2001).

12

A.D., 58 ECAB 149 (2006).

5

be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
ANALYSIS
OWCP accepted appellant’s claim for contusions of the left elbow and shoulder region,
cervical and lumbar sprains, a right knee contusion and concussion without loss of consciousness
as a result of a work-related fall on October 26, 2007.14 Appellant claimed disability for the
period November 4, 2007 through July 3, 2008 due to her October 26, 2007 fall. The Board
finds that she submitted insufficient medical evidence to support her claim.
In an August 22, 2008 report, Dr. Dwelle opined that appellant was totally disabled
between October 30, 2007 through July 11, 2008 due to knee pain, back pain and severe
adjustment disorder. While OWCP accepted a right knee contusion and a lumbar sprain, it did
not accept an emotional condition related to the October 26, 2007 fall at work.15 Dr. Dwelle also
did not explain how the diagnosed adjustment disorder was causally related to the October 26,
2007 fall or other accepted conditions. She explained in an October 3, 2008 report, that
appellant was unable to walk or work from October 26, 2007 through July 3, 2008 due to
significant knee limitations based on her review of the report of Dr. James. Dr. Dwelle’s
assessment does not accurately reflect Dr. James’ findings in his reports concerning appellant’s
right knee. Dr. James did not state that appellant was unable to walk, bear full weight on her
knees or complete activities of daily living to the extent that Dr. Dwelle indicated. His
February 14, 2008 report noted appellant’s complaints regarding the inability of her knees to
support her weight comfortably, he specifically indicated further diagnostic testing was needed
to determine the exact status of her right knee and he questioned if there were any objective basis
to her right knee pain. Dr. James did not attribute any period of disability to appellant’s
October 26, 2007 fall at work. Dr. Dwelle’s opinion is not based on an accurate factual
background, it is of diminished probative value.16
Dr. James’ reports are not sufficient to establish that appellant was disabled during the
period claimed of November 4, 2007 through July 3, 2008 due to injuries sustained in the
October 26, 2007 fall. In his January 22, 2008 report, Dr. James relates her symptomatic right
leg to her severely arthritic left knee and left knee shortening. However, no mention is made of
the October 26, 2007 work-related fall or whether appellant was disabled. In his February 14,
2008 report, Dr. James noted that appellant’s husband stated that the work-related fall resulted in
her back pain, right knee pain and exacerbated her left knee pain. He, however, offered no
13

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

14

While OWCP, on September 10, 2008, phrased its acceptance of the right knee contusion condition as
“temporary,” it did not make a formal finding regarding when the condition ended.
15

See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish
causal relation, not OWCP’s burden to disprove such relationship).
16

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).

6

specific opinion on the cause of the disability at issue.17 On August 7, 2008 Dr. James noted
findings and the history of the October 26, 2007 injury and appellant’s hospitalization but he
provided no opinion on the cause of disability beginning November 4, 2007. Thus, Dr. James’
reports are insufficient to establish her wage-loss claim.
Dr. Chaplan’s reports are also insufficient to establish appellant’s claim. In his May 22,
2009 report, Dr. Chaplan indicated a history of increasing problems with both knees following
the work-related injury of October 26, 2007 but he did not specifically explain why her disability
beginning November 4, 2007 was causally related to the October 26, 2007 fall at work. While he
indicated that appellant had a soft tissue injury of the right knee which was exacerbated by her
inability to walk normally on the left knee, he opined in his May 26, 2009 report that the etiology
of the right knee pain was unclear. In none of his reports did Dr. Chaplan render an opinion on
disability during the claimed period. In fact, he opined that appellant could return to modified
work May 26, 2009. Thus, Dr. Chaplan’s reports are insufficient to establish appellant’s claim.
In a December 11, 2008 report, Dr. Clevenger noted the history of the October 26, 2007
work-related fall and that appellant’s right knee continued to be her main complaint of pain
following the fall. He diagnosed left knee degenerative joint disease, which he opined was not
work related and right knee contusion. However, Dr. Clevenger offered no opinion on whether
appellant was disabled during the period claimed. Thus, Dr. Clevenger’s report is insufficient to
establish appellant’s claim.
The Board finds that the medical evidence of record is not sufficient to meet appellant’s
burden of proof with respect to the claimed disability for the period November 4, 2007 through
July 3, 2008. Accordingly, OWCP properly denied wage-loss compensation for those days.
Appellant argues on appeal that OWCP’s hearing representative’s decision was contrary
to fact and law. As noted, the medical evidence did not sufficiently address the causal
relationship of her alleged disability during the claimed period to her accepted work-related
injuries. Therefore, appellant failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled for the period
November 4, 2007 through July 3, 2008 due to her accepted work-related injuries.

17

See K.W., 59 ECAB 271(2007) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

7

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2011
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, SOUTH RIVER POST
OFFICE, South River, NJ, Employer
__________________________________________
Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 18-1558 &
18-1568
Issued: June 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On August 13, 2018 appellant, through counsel, filed timely appeals from May 15 and 16,
2018 decisions of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards assigned Docket Nos. 18-1558 and 18-1568.
On January 2, 2013 appellant, then a 51-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 2012 she injured her back and knees twisting
to avoid a rushing dog while in the performance of duty. OWCP assigned File No. xxxxxx701 to
this claim and on March 21, 2013 it accepted her claim for lumbosacral sprain and left knee sprain.
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

The Board notes that, following the May 15 and 16, 2018 decisions, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Appellant alleged additional left knee conditions arising from the December 26, 2012 employment
injury. By decision dated July 13, 2016, OWCP denied appellant’s claim for the additional
conditions of left knee anterior cruciate ligament tear and left lateral meniscal tear. On July 18,
2016 appellant, through counsel, requested an oral hearing before an OWCP hearing
representative. By decision dated May 30, 2017, OWCP’s hearing representative denied
appellant’s additional left knee conditions noting that there was no rationalized medical opinion
evidence of record addressing causal relationship between her current diagnosed left knee
conditions and her accepted December 26, 2012 employment injury.
On August 15, 2016 appellant filed a second traumatic injury claim (Form CA-1) alleging
that she experienced a sharp pain in her lower back while lifting a tub of relay mail while in the
performance of duty.3 This claim was assigned OWCP File No. xxxxxx352. By decision dated
September 27, 2016, OWCP denied the August 15, 2016 traumatic injury claim finding that
appellant had not established causal relationship between her diagnosed back condition and the
accepted employment incident. On September 30, 2016 appellant, through counsel, requested an
oral hearing with an OWCP hearing representative. By decision dated May 26, 2017, OWCP’s
hearing representative denied appellant’s August 15, 2016 traumatic injury claim finding that she
had not established causal relationship between the accepted employment incident and her
diagnosed low back or left hip conditions.
On February 14, 2018 appellant, through counsel, requested reconsideration of the May 30,
2017 OWCP decision. On February 16, 2018 reconsideration of the May 26, 2017 OWCP
decision was also requested. In support of these requests, counsel asserted that appellant’s case
files (File No. xxxxxx701 and File No. xxxxxx352) should be combined. He also provided
additional evidence that appellant sustained left hip injuries as a result of her accepted
December 26, 2012 employment injury and her accepted August 15, 2016 employment incident.
By decision dated May 15, 2018, OWCP denied modification of the May 30, 2017 decision. By
decision dated May 16, 2018, it denied modification of the May 27, 2017 decision.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files and where two or more injuries occur to the same part
of the body.4
Appellant filed two traumatic injury claims alleging that she sustained injuries to her back
and left hip.5 For a full and fair adjudication, the claims in File Nos. xxxxxx701 and xxxxxx352
should be combined, pursuant to OWCP procedures.6 This will allow OWCP to consider all
3

On August 15, 2016 the employing establishment provided appellant with an authorization for examination (Form
CA-16) which she did not have a physician complete.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

Appellant also asserted additional conditions of her left knee due to the December 26, 2012 employment injury
which were not accepted by OWCP.
6

Supra note 4 at Chapter 2.400.8(c)(1); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018).

relevant claim files in developing this claim. Moreover, to consider appellant’s appeal in
piecemeal fashion, as presented to the Board, could result in inconsistent results. It is the Board’s
policy to avoid such an outcome.7
These cases must be remanded to OWCP to combine the case records for File Nos.
xxxxxx701 and xxxxxx352. Following this and such other development as deemed necessary,
OWCP shall issue a de novo merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the May 16 and 15, 2018 decisions of the Office of
Workers’ Compensation Programs are set aside and the cases are remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7

See L.S., id.; William T. McCracken, 33 ECAB 1197 (1982).


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, CANTON
PERFORMANCE & DISTRIBUTION CENTER,
Canton, OH, Employer
__________________________________________

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

Docket No. 17-1117
Issued: June 6, 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 May 1, 2017 appellant, through counsel, filed a timely appeal from a February 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 the claim.

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 met his burden of proof to establish that he has greater than
four percent permanent impairment of the left upper extremity, for which he previously received
a schedule award.
FACTUAL HISTORY
On October 12, 2012 appellant, then a 56-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that his left shoulder rotator cuff tear was a result of the
repetitive and constant lifting, pushing and pulling of heavy objects required by his federal
employment duties. The employing establishment indicated that appellant last worked on
January 20, 2011. OWCP accepted the conditions of left supraspinatus tear, left superior glenoid
labrum tear, and left shoulder tendinitis and paid appropriate benefits.3
On January 8, 2013 appellant underwent an approved left shoulder arthroscopic surgery
performed by Dr. Joseph Hellman, a Board-certified orthopedic surgeon. He resumed modified
work on June 20, 2013, but stopped all work on June 22, 2013 and filed a claim for a traumatic
injury (Form CA-1).4
Appellant remained under the care of Dr. Hellman. In an October 9, 2013 treatment note,
Dr. Hellman reported that appellant had good power, motion, and pain control of the left shoulder
after rotator cuff repair. He noted that appellant had reached maximum medical improvement
(MMI) with no restrictions.
Appellant filed a schedule award claim (Form CA-7) on December 15, 2014.
By development letter dated December 19, 2014, OWCP asked appellant to provide an
impairment rating from his physician in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 Appellant
was afforded 30 days to submit the requested information. No additional evidence was received,
and on April 24, 2015, OWCP denied appellant’s claim for a schedule award.
Appellant elected disability retirement benefits, effective January 2, 2015.
On May 4, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.

3

Under OWCP File No. xxxxxx034, OWCP accepted a traumatic injury of August 22, 2011 for other and
unspecified complications of medical care. Under OWCP File No. xxxxxx427, appellant has an accepted traumatic
injury of March 26, 2009 for right shoulder conditions.
4

Under OWCP File No. xxxxxx374, OWCP denied the traumatic claim on November 7, 2013, finding insufficient
factual support for the work exposure.
5

A.M.A., Guides (6th ed. 2009).

2

Prior to the hearing, appellant submitted a November 24, 2015 report from Dr. Catherine
Watkins Campbell, a Board-certified family practitioner. Dr. Watkins Campbell noted the
accepted left shoulder conditions, performed a medical record review, and provided physical
examination findings. She noted that Dr. Hellmann found appellant had reached MMI of the left
shoulder on October 9, 2013. Dr. Watkins Campbell indicated that the most impairing condition
was the full-thickness rotator cuff tear. Using the diagnosis-based impairment (DBI) method of
the A.M.A., Guides, she opined that appellant sustained a total seven percent impairment of the
left upper extremity based on a diagnosis of left supraspinatus tear. Dr. Watkins Campbell
provided discussion of the findings supporting the impairment rating she provided, referenced the
pages and tables used, and provided detailed calculations explaining how she arrived at the
impairment figure.
A hearing was held on November 16, 2015. By decision dated January 27, 2016, an
OWCP hearing representative set aside the April 24, 2015 decision and remanded the case to
OWCP for further development. Specifically, the hearing representative found that the narrative
report from Dr. Watkins Campbell was sufficient to warrant further development of the evidence
to determine whether appellant’s employment injury caused permanent injury to the left upper
extremity under the A.M.A., Guides.
On February 9, 2016 OWCP forwarded a statement of accepted facts and the case file to
the district medical adviser (DMA) for review. In a February 20, 2016 report, Dr. Jovito Estaris,
a DMA and Board-certified preventive medicine/occupational environmental medicine specialist,
reviewed the medical record, including Dr. Watkins Campbell’s report. He indicated that
Dr. Watkins Campbell’s use of a grade 2 physical examination modifier was inconsistent with the
objective findings as she had not documented a subluxable shoulder or laxity for the left shoulder.
Thus, Dr. Estaris provided a grade 1 modifier for physical examination. Under the A.M.A.,
Guides, he determined that appellant had four percent left upper extremity permanent impairment
under the DBI method for a full thickness rotator cuff tear.
By decision dated April 7, 2016, OWCP granted appellant a schedule award for four
percent permanent impairment of the left upper extremity, for a total of 12.48 weeks, to run from
October 9, 2013 to January 4, 2014.
On April 14, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on December 15, 2016. During the hearing,
counsel noted the Board’s case of T.H., Docket No. 14-0943 (issued November 25, 2016),6 but
indicated that the only issue between DMA and Dr. Watkins Campbell concerned the use of a
grade modifier. A copy of the Board’s decision of T.H. was submitted to the record.

6

In T.H., the Board concluded that OWCP physicians were at odds over the proper methodology for rating upper
extremity impairment, having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion (ROM) methodologies
interchangeably without any consistent basis. Furthermore, the Board has observed that physicians interchangeably
cited to language in the first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all claimants.

3

By decision dated February 24, 2017, an OWCP hearing representative affirmed the
April 7, 2016 OWCP decision. The hearing representative accorded the weight of the medical
evidence to the report of the DMA, as he was considered the expert in the application of the
A.M.A., Guides.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director, Office of Workers’
Compensation Programs.7 Section 8107 of FECA sets forth the number of weeks of compensation
to be paid for the permanent loss of use of specified members, functions, and organs of the body.8
FECA, however, does not specify the manner by which the percentage loss of a member, function,
or organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. Through
its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.11
ANALYSIS
The issue on appeal is whether appellant has met his burden of proof to establish greater
than four percent permanent impairment of the left upper extremity, for which he previously
received a schedule award.

7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

9

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
11

Isidoro Rivera, 12 ECAB 348 (1961).

4

The Board finds that this case is not in posture for decision.
The Board has found that OWCP had inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the DBI or the ROM methodolog
when assessing the extent of permanent impairment for schedule award purposes.12 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.13 In T.H., the Board concluded that OWCP physicians were at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cited to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.14
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.15
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the May 1, 2017 decision.16 Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly,17 and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.18
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Supra note 6.

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

See supra note 12.

15

Id.

16

See E.S., Docket No. 17-0869 (issued August 14, 2017).

17

See FECA Bulletin No. 17-06 (issued May 8, 2017); B.L., Docket No. 17-1970 (issued April 19, 2018).

18

R.S., Docket No. 17-1783 (issued January 12, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the February 24, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: June 6, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF DEFENSE, PENTAGON
FORCE PROTECTION AGENCY,
Chambersburg, PA, Employer
__________________________________________

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

Docket No. 08-2242
Issued: June 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 12, 2008 appellant, through counsel, filed a timely appeal from the
December 28, 2007 and June 11, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that he sustained a back injury on October 6,
2007, as alleged.
FACTUAL HISTORY
On October 11, 2007 appellant, then a 26-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that, on October 6, 2007, while performing leg lifts, he felt a pop in
his lower back and that over the next few days the pain extended to his leg.

By letter dated November 20, 2007, the Office notified appellant of the deficiencies in his
claim and requested that he provide additional medical and factual evidence.
Appellant submitted medical notes dated October 17 through November 16, 2007, from
Dr. Babak Behta, Board-certified in family medicine, who reported appellant’s complaints of
low back pain, which radiated down to just underneath his buttock area, similar to the pain
associated with a previous herniated disc for which he underwent surgery. A magnetic
resonance imaging (MRI) scan did not show any significant problem. Dr. Behta diagnosed back
pain extending to the buttock area and provided restrictions on walking, climbing, lifting,
bending and stooping.
In an October 23, 2007 diagnostic report, an MRI scan revealed a mild enhancing
extradural scar formation extending to the right neural foramen, slight spinal stenosis at the L4-5
level and a mild posterocentral focal disc bulge, which was further compressing the thecal sac
slightly. A handwritten note dated October 26, 2007, stated that there was no sign of a herniated
disc.
In an attending physician’s report (Form CA-20) dated November 14, 2007, Dr. Behta
reported appellant’s complaint of back pain radiating into his right buttock. An MRI scan did
not reveal any significant abnormality. Where asked whether the condition was caused or
aggravated by an employment activity, Dr. Behta checked the box marked “no.”
In a November 29, 2007 medical report, Dr. Michael G. Radley, a Board-certified
neurosurgeon, stated that appellant presented with complaints of leg pain. He listed appellant’s
prior history of lumbar surgery in 2005 for predominately posterior leg pain. Appellant recently
experienced some recurrent symptoms, which worsened with sitting, standing still and twisting.
He also felt a popping sensation on October 6, 2007 while performing leg lifts. Dr. Radley noted
that an MRI scan of the lumbar spine revealed postsurgical changes at the L5-S1 level on the
right, but that no definite recurrence was seen. He diagnosed recurrent right leg pain and
postsurgical change at right L5-S1.
On December 7, 2007 appellant underwent diagnostic and therapeutic transforaminal
epidural steroid injections at the L5 and S1 levels. In an operative report, he was diagnosed with
radiculitis, neuritis, lumbar degenerative disc disease and lumbar spinal stenosis.
By decision dated December 28, 2007, the Office denied the claim, finding that appellant
did not submit medical evidence sufficient to establish the October 6, 2007 employment incident
as the cause of his back condition.
On March 14, 2008 appellant filed a request for reconsideration. In a February 5, 2008
report, Dr. Radley stated that appellant hurt himself while working out at work. In an undated
medical note, Dr. Daniel Sullivan, an osteopathic physician, stated that appellant was being
treated for right sciatica secondary to a work-related injury.
By decision dated June 11, 2008, the Office denied modification of its December 28,
2007 decision, on the grounds that the medical evidence was insufficient to establish his claim
because it did not establish the causal relationship between the work incident and the diagnosed
condition.
2

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
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.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.8

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354,
356-57 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The Office accepted that the October 6, 2007 incident occurred as alleged. The issue is
whether appellant established that he sustained an employment-related back injury on
October 6, 2007. The Board finds that he has not met his burden of proof. While appellant
submitted medical evidence addressing his back injury, none of the reports contain a rationalized
medical opinion addressing the causal connection between his back condition and the October 6,
2007 employment incident.9
Dr. Behta’s medical notes dated October 17 through November 16, 2007 discuss
appellant’s back condition and a previous herniated disc for which he underwent surgery. He
failed to address the cause of appellant’s current back condition. Dr. Behta did not adequately
explain how the accepted incident caused or aggravated appellant’s preexisting low back
condition. His reports are of diminished probative value on whether appellant’s condition is
causally related to his employment.10 Moreover, a November 14, 2007 attending physician’s
report contradicts appellant’s claim, as Dr. Behta indicated that the condition was not related to
the employment activity.
In a November 29, 2007 medical report, Dr. Radley diagnosed recurrent right leg pain
and postsurgical change at the right L5-S1. He reported appellant’s history of a previous lumbar
condition, that he had injured himself running in September 2007 and that on October 6, 2007 he
felt a popping sensation while performing leg lifts. Dr. Radley did not provide any medical
opinion regarding the cause of appellant’s condition beyond the recounting of his medical
history. He did not address how the accepted incident was sufficient to aggravate appellant’s
preexisting condition.11 The only medical opinion provided by Dr. Radley regarding causation is
a February 5, 2008 medical note. Dr. Radley stated that appellant hurt himself while working
out at work. This note is insufficient to establish appellant’s claim as Dr. Radley did not provide
any reasoning to support causation and did not provide findings based on a history of the
employment incident and on examination of appellant.12 Similarly, Dr. Sullivan also failed to
explain how appellant’s right sciatica condition was secondary to a work-related injury.13
The evidence submitted by appellant does not provide a rationalized medical opinion
describing the relationship between his back condition and the October 6, 2007 employment
incident. The Board finds that he did not meet his burden of proof to establish his claim.14

9

See Victor J. Woodhams, supra note 8.

10

See Robert Broome, 55 ECAB 339 (2004).

11

See Roy H. Snipes, 32 ECAB 1398 (1981) (where the Board found that a physician’s opinion lacked probative
value as he relied on appellant’s subjective complaints and failed to cite objective evidence to support his opinion).
12

See Victor J. Woodhams, supra note 8.

13

See id.

14

See id.

4

CONCLUSION
The Board finds that appellant did not establish that he sustained a back injury in the
performance of duty on October 6, 2007, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2008 and December 28, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
TRAVIS AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 15-1352
Issued: September 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a January 29, 2015 merit decision
and an April 2, 2015 nonmerit 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
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained wrist and neck pain and numbness of the upper extremities causally related to factors
of her federal employment; and (2) whether OWCP properly denied appellant’s request for
further merit review of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to a
review of evidence that was before OWCP at the time of its final review. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On October 6, 2014 appellant, then a 52-year-old physician, filed an occupational disease
claim (Form CA-2) alleging that she sustained wrist and neck pain and numbness of the upper
extremities as a result of her federal employment. She stated that she noted increasing pain in
her wrists when she moved from one Veterans Health Administration facility to another.
Appellant requested an ergonomic keyboard and headset as a result of this increasing pain and
received a keyboard, headset, and mouse for her office. However, she only received a keyboard
in the examination room. Appellant noted that she worked from 1.5 to 2 hours per night on her
home laptop engaging in patient care. She stated that she had wrist pain since May 22, 2014 and
even before that time. Appellant noted that she would sometimes have numbness in the right
fourth and fifth digits while sleeping, and that both of her hands would go numb. She stated that
she wore a right splint.
On December 9, 2014 the employing establishment noted that appellant’s current case
status was unreviewed. It requested that the case status be changed to “closed.”
By letter dated December 29, 2014, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. It noted that appellant had not submitted
any medical evidence from a physician and asked that appellant respond to its inquiries.
Appellant did not respond.
By decision dated January 29, 2015, OWCP denied appellant’s claim. It noted that she
had not submitted any evidence from a qualified physician containing a medical diagnosis in
support of her claim. OWCP accepted that appellant was a federal civilian employee who filed a
timely claim and that the employment factors occurred as alleged, and afforded appellant 30 days
to submit additional evidence.
In a record of a telephone conversation dated February 11, 2015, appellant told an OWCP
representative that she was never able to schedule an appointment for her condition and asked
about her options. The representative told her that because her claim was not accepted as work
related, she would have to be seen by a physician under her private insurance and that if she later
obtained medical evidence she could file an appeal, but needed to choose an avenue of appeal
that allowed her to submit additional evidence.
On February 21, 2015 appellant requested reconsideration of her claim. With her request
for reconsideration, appellant submitted a narrative statement in which she stated that she had
difficulty filing this claim and seeing a physician within the appropriate time frames. She noted
that she would submit medical information after seeing her own physician.
By decision dated April 2, 2015, OWCP denied appellant’s request for reconsideration.
It noted that appellant had not submitted any new and relevant evidence to support
reconsideration. OWCP stated that it had allowed 30 days for submission of additional medical
evidence, as appellant had mentioned in her narrative statement of February 21, 2015. No
additional medical evidence was not received.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained wrist and neck pain and numbness of the upper
extremities as a result of duties of her federal employment. The Board finds that she did not
submit sufficient medical evidence from a qualified physician to establish that a medical
condition was diagnosed in connection with this incident.
OWCP requested that appellant submit medical evidence containing a diagnosis from a
qualified physician by letter dated December 29, 2014 and afforded her 30 days to submit such
evidence. Appellant did not submit any medical evidence from a qualified physician containing
a diagnosis during this time period. While the Board notes that appellant herself is a physician,
the evidence submitted in support of her claim is of a factual, rather than a medical, character
and does not contain diagnoses of any condition or a statement of opinion on causal relationship.
In the similar case of D.G., Docket No. 12-644 (issued June 25, 2012), an appellant, who was
also a physician for the Department of Veterans Affairs, submitted a claim for bilateral carpal
tunnel syndrome and right medial nerve neuritis due to her repetitive work on a keyboard and
mouse, but did not submit any medical evidence in support of her claim. The Board found that
appellant had not met her burden of proof to establish that she sustained an employment-related
injury.
As in D.G., appellant, in the present case, is a physician claiming an occupational disease,
but did not submit any medical evidence in support of her claim. It is appellant’s burden to
submit a factual statement identifying employment factors alleged to have caused or contributed
to the presence or occurrence of the disease or condition. It is also her burden to submit medical
3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

3

evidence from a treating physician to establish a diagnosis of the disease or condition for which
compensation is claimed and that the diagnosed condition is causally related to the implicated
employment factors. The Board finds that appellant failed to submit any medical evidence to
establish a firm medical diagnosis or the causal relationship between her claimed condition and
factors of her federal employment. Although OWCP informed appellant of the deficiencies in
the evidence, she did not submit sufficient factual and medical evidence to establish her claim.
Appellant did not meet her burden of proof to establish that she sustained an employment-related
injury.5
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.6 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.7
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.8 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.9
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.10
ANALYSIS -- ISSUE 2
OWCP issued a January 29, 2015 decision finding that appellant had not established an
occupational disease related to factors of her federal employment. On February 21, 2015
appellant requested reconsideration of this decision.
5

See Donald W. Wenzel, 56 ECAB 390 (2005).

6

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

7

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

8

See Daniel Deparini, 44 ECAB 657, 659 (1993).

9

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
10

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

4

The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
In her February 21, 2015 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant met her burden of proof to establish an
occupational disease, and specifically whether she had submitted sufficient medical evidence to
establish a diagnosis from a qualified physician. A claimant may be entitled to a merit review by
submitting new and relevant evidence, but appellant did not submit any new and relevant
evidence in this case. Appellant submitted a statement dated February 21, 2015 detailing her
difficulties filing a claim and stated that she would submit more medical evidence once she had
seen her own physicians under private insurance. This document, while not previously
considered by OWCP, was irrelevant to the underlying issue of appellant’s burden of proof to
establish an occupational disease in the performance of duty. Appellant’s claim was denied due
to lack of sufficient medical evidence to establish a diagnosis from a qualified physician. As her
statement did not contain a diagnosis from a qualified physician, it was irrelevant to the basis
upon which her claim was denied.
The Board, therefore, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained wrist and neck pain and numbness of the upper extremities causally related to factors
of her federal employment. The Board further finds that OWCP properly denied appellant’s
request for review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 2 and January 29, 2015 are affirmed.
Issued: September 17, 2015
Washington, DC

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

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

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

6