United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2252
Issued: February 15, 2008

Case Submitted on the Record

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

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 19 and August 3, 2007 merit decisions denying her claim for
periods of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant had total disability for the periods July 22 to December 4,
2005 and October 11, 2006 to February 20, 2007 due to her February 26, 2005 employment
injury.
FACTUAL HISTORY
In April 2005, the Office accepted that on February 26, 2005 appellant, then a 39-yearold licensed practical nurse, sustained a left forearm contusion when her left arm and left leg

were bumped by a vehicle which was backing up in the employing establishment parking lot.1
She stopped work on February 26, 2005 and received continuation of pay for periods of
disability.
On February 26, 2006 Dr. Abdul Khan, an attending Board-certified internist, stated that
appellant reported that a vehicle hit her left elbow but, that she did not fall, sustain a laceration or
injure any body part other than her left arm. He indicated that appellant had some tenderness in
her left arm but had full motion of the elbow. On February 27, 2006 Dr. Godfrey S. Fondinka,
an attending Board-certified family practitioner, indicated that appellant reported that she was hit
by a vehicle in her left forearm and lumbar area. He stated that appellant had tenderness and
swelling over the lower third of her left forearm but did not have significant tenderness in her
lumbar area. Dr. Fondinka diagnosed left forearm contusion. The findings of February 27, 2005
x-rays of appellant’s left forearm showed no fractures or bony abnormalities.
On April 13, 2005 Dr. Maria J. Wilson, an attending physician specializing in
rheumatology, indicated that appellant reported that she had joint pain in her wrists, hips, knee
and ankles since 2000 which seemed to get worse in 2004. Appellant indicated that on
February 26, 2005 she was hit by a vehicle on her left upper arm and noted that she had
increased arm pain and suffered back pain for the first time. Dr. Wilson noted that examination
of appellant’s joints was normal and diagnosed joint pain of multiple joints, low back pain and
leg pain. She indicated that appellant did not exhibit evidence of fibromyalgia but that she had a
chronic pain syndrome.
On April 28, 2005 Dr. Elizabeth Sengstaken, an attending Board-certified family
practitioner, recommended that appellant stay off work from April 28 to May 11, 2005 due to a
“back injury.” On April 29, 2005 Dr. Meisha Abbasinejad, an attending Board-certified physical
medicine and rehabilitation physician, indicated that appellant reported that she had generalized
aches and pains which started prior to being hit by a vehicle on February 26, 2005 but worsened
after the accident. He reported normal examination results except for low back tenderness and
end range back extension limited by pain complaints. Dr. Abbasinejad diagnosed “back pain,
secondary to motor vehicle accident with likely lumbar strain” and “generalized myalgias and
arthralgia, etiology unclear” and indicated that appellant could return to work with restrictions.
On June 3, 2005 appellant filed a Form CA-7 claiming employment-related disability
from April 14, 2005 to the present.2 In reports dated in June 2005, Damon Arrington, an
attending nurse practitioner, diagnosed myofascial pain due to the February 26, 2005 accident
and indicated that appellant had disability since that date. He asserted that her back pain was

1

The Office later accepted that appellant also sustained a lumbar strain on February 26, 2005. The driver of the
vehicle indicated that she did not detect any impact with appellant at the time of the accident. Another witness
stated that appellant was “slightly hit” by the backing vehicle. Appellant indicated on her claim form that her “body
was threw [sic] by the vehicle” but none of the witness statements indicate that she fell to the ground or that her
body was pushed to a significant extent by the impact.
2

Appellant asserted that she sustained a back injury when she was hit on February 26, 2005.

2

related to the February 26, 2005 accident.3 On September 8, 2005 appellant filed another Form
CA-7 asserting that her employment-related disability extended from April 14 to July 21, 2005.
In a November 1, 2005 decision, the Office denied appellant’s claim that she sustained an
employment-related disability from April 14 to July 21, 2005 on the grounds that she did not
submit medical evidence establishing this period of disability.
On November 8, 2005 Dr. Daniel C. Uba, an attending Board-certified internist, stated
that appellant reported developing back pain after a vehicular accident in February 2005 which
had not existed prior to the accident. He noted that the results of imaging studies had been
unremarkable and stated, “My professional opinion is that it is at least as likely as not that the
accident may have caused or aggravated her lower back pain.”4
On December 5, 2005 appellant returned to limited-duty work for the employing
establishment without loss of wages.
In an April 20, 2006 decision, the Office vacated its November 1, 2005 decision. It
accepted that appellant sustained a low back strain in addition to a left forearm contusion on
February 26, 2005 and accepted that she had employment-related disability from April 14 to
July 21, 2005.5
Appellant submitted several reports, beginning in early to mid 2006, in which
Mr. Arrington diagnosed myofascial pain syndrome, chronic lumbago and depression and
indicated that she could only perform limited-duty work. On June 13, 2006 Dr. Uba indicated
that appellant sustained myofascial pain syndrome, lumbago and depression due to being struck
by a vehicle as a pedestrian on February 26, 2005. He stated that she was partially disabled from
February 26, 2005 to the present. On June 27, 2006 appellant filed a Form CA-7 alleging that
she had employment-related disability from July 22 to December 4, 2005.6
On September 27, 2006 the employing establishment requested that appellant submit
medical evidence showing that she was required to perform limited-duty work due to residuals of
her employment injury. The employing establishment asked appellant to submit this evidence by
October 11, 2006. She stopped work on October 11, 2006. Appellant later claimed that she
stopped work on that date because the employing establishment withdrew her limited-duty work.
On December 1, 2006 Dr. Surendrapal Mac, a Board-certified orthopedic surgeon, to
whom the Office referred appellant, discussed the February 26, 2005 accident and appellant’s
history of medical treatment. He stated that she had some lumbar area and bilateral shoulder
3

On November 8, 2005 Mr. Arrington diagnosed myofascial pain syndrome, chronic lumbago and depression and
indicated that appellant could only perform limited-duty work.
4

On May 11, 2005 Dr. Uba stated that appellant had to be excused from work between May 11 and
June 16, 2005.
5

The Office subsequently paid appellant compensation for lost wages during the period April 14 to July 21, 2005.

6

The record contains evidence indicating that appellant was in leave without pay status from July 22 to
December 4, 2005.

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pain but had full range of motion of her arms and did not have any weakness in her legs.
Dr. Mac diagnosed resolved left forearm contusion, resolved lumbar strain and “multiple joint
arthralgia with myofascial pain, unrelated to her injury.” He posited that appellant did not have
any residuals of her February 26, 2005 employment injury and therefore did not have any
disability due to her employment injury.
On February 5, 2007 appellant filed a Form CA-7 alleging that she had employmentrelated disability from October 11, 2006 to February 2, 2007.7
On March 26, 2007
Mr. Arrington diagnosed low back pain, myofascial pain syndrome and depression and indicated
that appellant could resume “normal activities.”
In two April 19, 2007 decisions, the Office denied appellant’s claim that she had
employment-related disability from July 22 to December 4, 2005 and from October 11, 2006 to
February 2, 2007 on the grounds that she did not submit medical evidence establishing these
periods of disability.8 In a May 29, 2007 decision, the Office terminated appellant’s
compensation effective May 25, 2007 on the grounds that she had no residuals of her
February 26, 2005 employment injury after that date. The Office based its termination on the
opinion of Dr. Mac.9
In connection with the Office’s April 19, 2007 decision, appellant requested a review of
the written record by an Office hearing representative.10 Appellant’s attorney argued that the
Office impermissibly placed the burden of proof on appellant to show entitlement to
compensation for the period July 22 to December 4, 2005 because the Office had approved
compensation for the period April 14 to July 21, 2005. Counsel also argued that appellant had
disability beginning October 11, 2006 because the employing establishment withdrew her
limited-duty work on that date. In an August 3, 2007 decision, the Office hearing representative
affirmed the Office’s April 19, 2007 decisions. The Office determined that appellant had the

7

Appellant’s counsel resubmitted evidence showing that she was in leave without pay status from July 22 to
December 4, 2005.
8

In an April 19, 2007 memorandum, the Office indicated that it had previously assumed that appellant performed
limited-duty work from July 22 to December 4, 2005. The Office indicated that it had received evidence which
showed that she actually was in leave-without-pay status during this period.
9

Appellant has not appealed the Office’s May 29, 2007 termination decision to the Board and the matter is not
currently before the Board.
10

Appellant submitted additional reports of Mr. Arrington dated May 28 and June 15, 2007.

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burden of proof to show entitlement to compensation for the period July 22 to
December 4, 2005.11
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,12 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.13 The
Office may not terminate compensation without establishing that the disability ceased or that it
was no longer related to the employment.14 The fact that the Office accepts an employee’s claim
for a specified period of disability does not shift the burden of proof to the employee to show that
she is still disabled.15 The Office’s burden includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.16
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.17 Office procedure provides that a recurrence of disability can
be caused by withdrawal of a light-duty assignment made specifically to accommodate an
employee if the withdrawal is not due to misconduct or nonperformance of job duties.18

11

The Office stated, “[Appellant’s counsel] has argued that this burden shifted to the Office as they paid
compensation through July 21, 2005. While this would be true [if] the claimant was receiving regular payments of
compensation for wage loss due to her inability to work in this case, however, the claimant’s disability was initially
denied and later on April 20, 2006 the accepted condition expanded, disability for wage loss was accepted through
July 21, 2005 and the claimant advised that pay for this period would be authorized. At that time the claimant was
advised that the disability was only for the period April 14 to July 21, 2005 as this was the only claim for wage loss
on file. The Office did not receive a claim for wage loss for the period after July 21, 2005 until June 27, 2006 over a
year later. As such, I find that the claimant had no expectation of continued compensation for wage loss at the time
of the first payment and the burden did not shift to the Office.”
12

5 U.S.C. §§ 8101-8193.

13

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

14

Id.

15

Raymond W. Behrens, 50 ECAB 221, 222 (1999).

16

Mary Lou Barragy, 46 ECAB 781, 787 (1995).

17

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c) (January 1995).

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ANALYSIS
The Office initially accepted that appellant sustained a left forearm contusion on
February 26, 2005 when her body was bumped by a vehicle which was backing up in the
employing establishment parking lot. She stopped work on February 26, 2005 and received
continuation of pay for a period. Appellant claimed that she had employment-related disability
from April 14 to July 21, 2005 and, in a November 1, 2005 decision, the Office denied her claim.
In an April 20, 2006 decision, the Office vacated its November 1, 2005 decision. The Office
accepted that appellant sustained a low back strain in addition to a left forearm contusion on
February 26, 2005 and accepted that she had employment-related disability from April 14 to
July 21, 2005.
In April 19 and August 3, 2007 decisions, the Office denied appellant’s claim that she
had employment-related disability from July 22 to December 4, 2005 on the grounds that she did
not meet her burden of proof to submit medical evidence establishing these periods of disability.
The Office reasoned that, even though it accepted disability between April 14 and July 21, 2005,
the burden to show employment-related disability after July 21, 2005 rested with appellant.
The Board finds that the Office impermissibly shifted the burden of proof to appellant to
establish that she had employment-related disability for the period July 22 to December 4, 2005.
Once the Office has accepted a claim it has the burden of justifying termination or modification
of compensation benefits and the fact that the Office accepts an employee’s claim for a specified
period of disability does not shift the burden of proof to the employee to show that she is still
disabled.19 Given that it had been accepted that appellant had employment-related disability
from April 14 to July 21, 2005, the Office did not provide sufficient argument to justify shifting
the burden of proof to her for establishing disability for the period July 22 to
December 4, 2005.20 The Office retained the burden of proof to show that she did not have
disability due to her February 26, 2005 employment injury after July 21, 2005, but it did not
submit medical evidence showing that she ceased to have residuals of her employment injury
after July 21, 2005.21 Therefore, the Board finds that appellant had employment-related
disability for the period July 22 to December 4, 2005 and she would be entitled to disability
compensation for this period.22
19

See supra notes 13 through 15 and accompanying text.

20

The mere fact that appellant received compensation retroactively for the period July 22 to December 4, 2005
(rather than receiving “regular payments of compensation”) or that she did not file a formal claim for compensation
for this period until mid 2006 would not serve to shift the burden of proof to her. The record reveals that she was in
leave-without-pay status for the period July 22 to December 4, 2005.
21

See supra note 16 and accompanying text regarding the need for the Office to submit rationalized medical
evidence. The record does not contain any medical reports showing that appellant did not have employment-related
disability during the period July 22 to December 4, 2005. Moreover, the record contains reports of Dr. Uda, an
attending Board-certified internist, which indicate that she continued to have employment-related back problems
during this period.
22

On December 5, 2005 appellant returned to limited-duty work for the employing establishment without loss of
wages and she did not file another claim for employment-related disability until after she stopped work on
October 11, 2006.

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Appellant stopped work on October 11, 2006 and claimed that she had employmentrelated disability from October 11, 2006 to February 2, 2007. She asserted that she stopped work
on October 11, 2006 because the employing establishment withdrew her limited-duty work.
Because appellant stopped work after a return to limited-duty work, she would have the burden
of proof to establish disability for the period October 11, 2006 to February 2, 2007.23 Office
procedure provides that a recurrence of disability can be caused by withdrawal of a light-duty
assignment made specifically to accommodate an employee if the withdrawal is not due to
misconduct or nonperformance of job duties.24 However, appellant did not present clear
evidence that the employing establishment withdrew her limited-duty work (for reasons other
than misconduct or nonperformance of job duties) on October 11, 2006 or any date thereafter.
Therefore, in order to establish entitlement to disability compensation for the period October 11,
2006 to February 2, 2007, appellant would have to submit medical evidence showing that she
had employment-related disability during this period.
The Board finds that appellant did not submit medical evidence showing that she had
disability during the period October 11, 2006 to February 2, 2007 due to her February 26, 2005
employment injury. Appellant submitted a March 26, 2007 report in which Mr. Arrington, an
attending licensed practical nurse, indicated that she continued to have back problems. However,
this report does not constitute probative medical evidence as a nurse is not a “physician” as
defined under the Act and cannot render a medical opinion.25 Appellant did not submit any
medical evidence discussing the cause of her claimed disability for the period October 11, 2006
to February 2, 2007. Moreover, Dr. Mac, a Board-certified orthopedic surgeon, who served as
an Office referral physician, indicated that appellant no longer had residuals of her February 26,
2005 injury at the time of his December 1, 2001 examination. Therefore, the Office properly
denied appellant’s claim for disability compensation for the period October 11, 2006 to
February 2, 2007.
CONCLUSION
The Board finds that appellant is entitled to receive disability compensation for the period
July 22 to December 4, 2005. The Board further finds that appellant did not meet her burden of
proof to establish that she was disabled from October 11, 2006 to February 20, 2007 due to her
February 26, 2005 employment injury.

23

See supra note 18 and accompanying text.

24

See supra note 17 and accompanying text.

25

See 5 U.S.C. § 8101(2); Bertha L. Arnold, 38 ECAB 282, 285 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 3 and April 19, 2007 decisions are affirmed to the extent that they found that appellant
was not entitled to disability compensation for the period October 11, 2006 to February 20, 2007.
The Office’s August 3 and April 19, 2007 decisions are modified to reflect that appellant is
entitled to receive disability compensation for the period July 22 to December 4, 2005.
Issued: February 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-1142
Issued: November 14, 2019

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant filed a timely appeal from a March 8, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 11, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On February 7, 2017 appellant, then a 60-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day he lifted a full capacity sack, twisted to throw it into
a hamper, and injured his right hip while in the performance of duty. On October 13, 2017 OWCP
accepted appellant’s claim for right inguinal hernia.
On November 28, 2017 appellant underwent authorized laparoscopic right inguinal hernia
repair.
In reports dated February 1 and 16, 2018, Dr. Michael Regan, a Board-certified orthopedic
surgeon, indicated that he examined appellant for right knee pain that had worsened after his hernia
surgery. He noted that there was no history of substantial trauma to his knee and related that x-rays
revealed no evidence of fracture, bony abnormalities, or degenerative changes. Dr. Regan
indicated that a magnetic resonance imaging (MRI) scan of appellant’s right knee revealed small
joint effusion, no internal derangement, and no acute bony pathology. He diagnosed right knee
pain, noted no clear surgical etiology, and opined that the injury was likely due to a soft tissue
sprain.
In a report dated February 26, 2018, Dr. Benjamin Russell, an osteopathic physician Boardcertified in general surgery, indicated that he examined appellant for continued right inguinal pain
that radiated to the medial aspect of his right knee. He noted that upon returning to work following
his hernia repair, appellant reported a transient sharp pain radiating from the right groin to the
medial aspect of the right knee when performing certain movements. Dr. Russell also indicated
that, after appellant underwent surgery, he walked with an antalgic gait favoring his right leg. He
noted that plain film imaging and a right leg MRI scan did not reveal arthritis. Dr. Russell
diagnosed right knee pain, noted that appellant had some degree of inflammation within the right
knee, and opined that this symptom was a result of his antalgic gait for a prolonged period of time
prior to his hernia surgery.
In reports dated March 16 and 30, 2018, Dr. Jeffrey Bush, a Board-certified orthopedic
surgeon, indicated that he examined appellant for right knee pain. He noted that appellant had
undergone hernia surgery, and shortly thereafter he developed right knee pain. Dr. Bush noted the
possibility of a torn meniscus even though the MRI scan did not show a clear tear. On March 30,
2018 he requested authorization for knee arthroscopy/surgery.
In a development letter dated April 6, 2018, OWCP advised appellant that the evidence of
record was insufficient to authorize the proposed treatment. It informed him of the evidence
needed to authorize the surgery requested and afforded him 30 days to submit the necessary
evidence for consideration.
In a letter dated May 1, 2018, Dr. Bush indicated that during appellant’s right knee surgical
procedure, performed on April 24, 2018, he discovered a torn medial meniscus as well as arthritic
degenerative changes. He noted that he could not determine the age or mechanism of injury based
on his intra-operative findings or photos. Dr. Bush opined that, since appellant reported having no
pain prior to his February 7, 2017 employment incident, that he injured his knee at the time of that
incident. He further opined that the arthritis discovered in surgery was chronic, and not related to
the February 7, 2017 employment incident.
2

By decision dated May 11, 2018, OWCP denied appellant’s request for authorization of
right knee surgery, finding that the evidence of record did not support that it was medically
necessary to address the effects of his accepted employment-related condition.
On May 30, 2018 appellant requested reconsideration of OWCP’s May 11, 2018 decision.
In support of his request for reconsideration, appellant submitted copies of documents
previously of record and considered in OWCP’s previous decision, including his completed Form
CA-1, Dr. Bush’s May 1, 2018 letter, and multiple hospital records. He also submitted an unsigned
and undated medical report which noted that appellant was having difficulty walking and his knee
had started to hurt.
By decision dated June 11, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
Appellant continued to submit medical evidence to the case file including multiple
duplicate copies of treatment reports, as well as new postoperative reports dated September 11,
2018, from Dr. Bush regarding appellant’s knee injury.
In a report dated November 13, 2018, Dr. Frank A. Graf, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and provided physical examination findings. He
noted that, on February 7, 2017, appellant was throwing 40- to 50-pound priority sacs into the back
of his postal vehicle and sustained a twisting injury to his right hip and right knee. Dr. Graf related
that appellant underwent right inguinal hernia repair, which resolved his groin and hip symptoms,
and that during this time he developed right knee pain, swelling, and catching. He diagnosed
meniscal tear medial meniscus and synovitis of the right knee, objectively documented by direct
visualization at arthroscopy, and medial compartment degenerative osteoarthritis of the right knee,
postinjury. Dr. Graf opined that these diagnoses were directly causally related to the twisting
motion during appellant’s February 7, 2017 employment incident.
On January 18, 2019 appellant again requested reconsideration of OWCP’s May 11, 2018
decision.
By decision dated March 8, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain

3
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

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limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.8 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an OWCP
decision denying merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at 20 C.F.R. § 10.606(b)(3) to the claimant’s request for
reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that this case is not in posture decision.
On January 18, 2019 appellant filed a timely request for reconsideration, of the May 11,
2018 merit decision. In support of his request for reconsideration, he submitted a new report dated
November 13, 2018 from Dr. Graf. Dr. Graf noted appellant’s history of injury regarding the
February 7, 2017 employment incident, and related that he underwent right inguinal hernia repair,
which resolved his groin and hip symptoms, but that he had developed right knee pain, swelling,
and catching. He diagnosed right knee tear of the medial meniscus, chronic synovitis, and medial
compartment degenerative osteoarthritis. Dr. Graf opined that these diagnoses were directly
causally related twisting motion during appellant’s February 7, 2017 employment incident.
Dr. Graf provided an opinion supportive of causal relationship, between appellant’s right
knee condition and his accepted employment injury. Since OWCP denied appellant’s request for
authorization of right knee surgery based on a finding that his right knee condition was not causally
4

20 C.F.R. § 10.607.

5
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

J.F., Docket No. 17-1508 (issued March 28, 2018).

9

M.S., Docket No. 19-0607 (issued September 6, 2019); see also Mark H. Dever, 53 ECAB 710 (2002).

10

Supra note 7 at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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related to the accepted employment injury, Dr. Graf’s opinion is relevant to the underlying issue
on reconsideration.11 As the current record includes relevant and pertinent evidence not previously
considered by OWCP in its May 11, 2018 decision, appellant has met the third above-noted
requirement of 20 C.F.R. § 10.606(b)(3). Consequently, the Board finds that OWCP improperly
denied merit review pursuant to 20 C.F.R. § 10.608.
The case will be remanded for OWCP to properly conduct a merit review of the claim.
Following this and such other additional development as deemed necessary, OWCP shall issue an
appropriate merit decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: November 14, 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

11
See K.J., Docket No. 19-0146 (issued July 10, 2019); see also E.R., Docket No. 17-1055 (issued
August 17, 2017).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1128
Issued: November 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 6, 2016 appellant, through counsel, filed a timely appeal from a November 30,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2014 appellant then a 54-year-old supervisor, filed an occupational disease
claim (Form CA-2) alleging that she developed left plantar fasciitis, right soleus rupture, and
right ankle tendinitis as a result of prolonged walking, bending, and squatting required in her job.
She first became aware of her condition on January 15, 2013 and realized that it was causally
related to her federal employment on March 11, 2014. Appellant was last exposed to the
conditions alleged to have caused her illness on March 11, 2013. She was terminated on
June 4, 2013.3
In an undated statement, appellant indicated that a Dr. Anthony Valenti, a podiatrist, had
performed right foot surgery 10 years prior. She noted that Dr. Valenti had diagnosed heel spur
and plantar fasciitis and indicated that it was caused by prolonged standing and walking at work.
On March 11, 2013 appellant reported stepping onto a sidewalk with her right foot and felt a pop
and extreme right leg pain. She also attributed right hip pain to her work.
On July 18, 2014 OWCP advised appellant of the type of evidence needed to establish
her claim, particularly a physician’s reasoned opinion addressing the relationship between her
claimed condition and specific work factors.
Appellant was treated by Dr. Valenti on January 15, 2013 for a one-month history of left
heel pain. Dr. Valenti noted pain on palpation of the central band of the plantar fascia at the
insertion to the calcaneus on the left foot. He noted that x-rays revealed significant medial
spurring and he diagnosed left heel spur and plantar fasci. Dr. Valenti injected the left foot with
lidocaine and applied a low dye strapping. On February 21, 2013 he again treated appellant for
left heel pain. Dr. Valenti noted her plantar fasciitis was a direct result of standing on her feet at
work for an extended period. He advised that appellant was currently in a removable cast and
returned her to sedentary work. In reports dated March 7 and 28, and April 10, 2013, appellant
presented for follow up of plantar fasciitis of the left foot. She had pain on palpation of the
central band of the plantar fascia. Dr. Valenti noted a possible oblique fracture to the base of the
fifth metatarsal. He advised an injection and orthotics.
On March 11, 2013 appellant complained of a pop associated with the right leg just distal
to the knee which occurred while walking through a parking lot. Dr. Valenti found appellant
disabled from work for one week. On May 22, 2013 he treated her for a previous right soleus
rupture. Dr. Valenti noted pain on palpation of the central band of the left plantar fascia and
diagnosed plantar fasci and tendinitis.
On June 5, July 3, and August 23, 2013 appellant continued treatment for left foot plantar
fasciitis. He reported improvement, but was unable to tolerate walking. Dr. Valenti diagnosed
plantar fasci and tendinitis. On July 26, 2013 appellant performed a left plantar fasciotomy. In
reports dated August 9 and 23, and September 6 and 27, 2013, Dr. Valenti noted that appellant
3

On May 15, 2013 appellant filed a traumatic injury claim under OWCP File No. xxxxxx537 alleging that on
March 11, 2013 she felt something snap in her right leg while stepping up to a sidewalk. By decision dated July 2,
2013, OWCP denied the claim as causal relationship had not been established. By decision dated July 29, 2014, it
denied modification of the July 2, 2013 decision.

2

reported slow postsurgical improvement. He noted findings of pain on palpation of the medial
band of the plantar fascia which appeared to be a retracted area of the tendon. Dr. Valenti
diagnosed plantar fasci and tendinitis. January 16 and February 11, March 4, and June 6, 2014
reports related that appellant had pain and swelling associated with the plantar medial aspect of
the left ankle. Dr. Valenti noted findings and diagnosed plantar fasci and tendinitis. Dr. Valenti
again administered an injection of lidocaine and applied a low dye strapping to her left foot. He
indicated that he had no new treatment options and he opined that appellant could have multiple
sclerosis.
On March 19, 2013 Dr. Cydney West, an osteopath, saw appellant for right hip pain.
Appellant reported having low grade hip pain two years ago on the outside of the leg. She noted
undergoing a prior iliotibial band surgery. Dr. West noted findings of right hip tenderness and
pain over the lateral upper leg on palpation. She diagnosed hip pain and band friction syndrome.
Dr. West recommended physical therapy.4
In a January 28, 2014 report, Dr. Jennifer O. Kubista, a Board-certified family
practitioner, treated appellant for right knee pain. She noted laxity in the bilateral anterior
cruciate ligaments. Dr. Kubista diagnosed knee pain, overuse injury, and arthritis. She referred
appellant to an orthopedist.
On March 6, 2014 appellant was treated by Dr. Douglas Redosh, a Board-certified
neurologist to whom she was referred by Dr. Valenti, for left foot pain. She reported rupturing
her soleus muscle on the right side after being placed in a cast for left foot pain fracturing a left
metatarsal bone and having had a plantar fasciotomy on July 1, 2013. Dr. Redosh noted findings
of a mildly obese female, decreased sensation to pinprick in a patchy fashion below the left knee,
decreased vibration sense in the left toe, and antalgic gait. He noted an electromyogram (EMG)
was normal and diagnosed left leg pain. On April 3, 2014 appellant reported significant left foot
pain. Dr. Redosh noted that a cervical spine magnetic resonance imaging (MRI) scan showed
early cervical spondylosis at C5-6 and a thoracic spine MRI scan was normal.5 He noted pain in
both legs with an antalgic gait. Dr. Redosh noted diagnostic testing failed to reveal any
abnormalities to explain her symptoms and diagnosed likely neuropathic pain. He recommended
a brain MRI scan to rule out any infectious, autoimmune, compressive etiologies of myelopathy,
including multiple sclerosis.
On June 26, 2014 appellant was treated by Dr. Jack L. Rook, a Board-certified
physiatrist, for bilateral foot, right calf, and right hip pain. Dr. Rook noted that appellant’s work
required prolonged walking, standing, and pushing and pulling mail containers. Appellant had
an antalgic gait as well as exquisite tenderness of the right greater trochanteric bursa. She also
had severe tenderness of the plantar fascia, left and right Achilles bursa and tendon, and soleus
muscle/posterior calf on the right side. Dr. Rook diagnosed greater trochanteric bursitis, status
post rupture of the right soleus muscle with chronic myofascial pain, pain related to scar tissue
formation, bilateral Achilles tendinitis and bursitis, bilateral plantar fasciitis, and strain of the
metatarsal phalangeal joints of the great toe, second toe, and third toe on the right. He opined
4

The record indicates that appellant underwent physical therapy from March 14 to April 4, 2013.

5

An April 10, 2014 cervical spine MRI scan revealed early cervical spondylosis at C5-6.

3

that, based upon appellant’s history and a review of her medical records, she had developed an
occupational disease involving her right hip approximately nine years earlier, an occupational
disease involving her left foot in December 2013, and an acute occupational injury of her right
calf on March 11, 2013. Dr. Rook noted that appellant was wearing a left leg surgical boot and
had to excessively contract the right calf muscles to get her left leg over the curb to enter her
workplace and ruptured her right soleus muscle. He believed the soleus rupture was an acute
injury that was related to the left foot injury. Dr. Rook opined that appellant’s right great toe
pain and right hip pain probably resulted from altered weight bearing, and that all of her current
right leg problems were indirectly related to the left foot occupational disease.
For the right hip condition, Dr. Rook noted that appellant first had right hip pain at work
performing job duties which included prolonged standing, and pushing and pulling of heavy mail
containers. He indicated that the right hip condition was aggravated because of the alteration of
appellant’s gait which required her to bear most of her weight on her right leg. The altered
weight-bearing resulted in excessive contraction of thigh musculature, repetitive irritation of that
structure and inflammation with the severe pain. For the left plantar fasciitis, appellant first
noted pain on the bottom of her left foot while she was at work engaging in prolonged standing
and walking which progressively worsened as the holiday season progressed. Dr. Rook
indicated that plantar fasciitis occurs when the longitudinal arch collapses causing stretching of
the ligamentous tissue which can lead to inflammation along the fascia at the metatarsal heads
and the heel. Appellant’s job required standing on a hard floor all day long, walking on a hard
floor, carrying heavy boxes while walking on a hard floor and forcefully pushing and pulling
heavy objects. Dr. Rook opined that it is more than likely that the plantar fasciitis in her left foot
was caused by the activities required of her job. He found that the right soleus muscle ruptured
while contracting in an effort to raise appellant’s body over the curb, and to allow her left foot
(which had on a surgical boot) to clear the curb. The excessive contraction then precipitated the
muscle rupture. Dr. Rook further opined that the right foot condition developed because of the
increased weight bearing of her right leg to compensate for the painful left plantar fasciitis
condition. He indicated that prolonged weight-bearing activities required in appellant’s job
contributed to the development of plantar fasciitis, Achilles bursitis, and tendinitis on the right
side. Dr. Rook found that appellant had no traumatic events outside of work.
In a January 30, 2015 decision, OWCP denied appellant’s claim finding that she had
failed to establish that her claimed medical condition was causally related to the established work
factors.
On February 15, 2015 appellant requested an oral hearing which was held on
September 17, 2015. She also submitted additional medical evidence.
Appellant was treated by Dr. Redosh on March 7 and April 3, 2014 for left foot pain.
Dr. Redosh restated appellant’s history and diagnosed left lower extremity pain, likely
neuropathic pain. On August 4, 2014 he noted her EMG was normal and her recent cervical and
thoracic spine MRI scans did not show abnormalities to explain her symptoms. Dr. Redosh
diagnosed idiopathic painful neuropathy in her left foot and recommended that appellant
continue on her current medical regimen.

4

Appellant was seen by Dr. Valenti on July 11, July 28, and August 14, and December 9,
2014 for a swollen right foot. Right foot x-rays revealed excellent osseous fixation position.
Dr. Valenti diagnosed right second metatarsal fracture, ganglion cyst, plantar fasci, and tendinitis
and placed appellant in a removable cast. On December 31, 2014 he saw appellant in follow up
for a stress fracture of the left second metatarsal. Dr. Valenti diagnosed metatarsal fracture,
ganglion cyst, plantar fasciitis, and tendinitis. On January 21, February 11, and June 10, 2015,
he reiterated appellant’s diagnoses and recommended she continue to transition back to regular
shoes and avoid overuse of the right foot. On June 23, 2015 Dr. Valenti treated appellant in
follow up for neuritis of the right second digit. Appellant reported total relief from an injection
on June 10, 2015. Dr. Valenti diagnosed neuritis, arthritis of the joint, metatarsal fracture,
ganglion cyst, plantar fasciitis, and tendinitis and discharged appellant from his care. On
August 19, 2015 he noted treating her since December 2012 for foot pain. Dr. Valenti initiated a
change in appellant’s medications to control her neuropathic pain.
Appellant was treated by Dr. Brian D. Shannon, a Board-certified orthopedist, on
April 23 and May 7, 2014, for right hip pain. Dr. Shannon noted that appellant had a
trochanteric bursa excised eight years prior. He noted point tenderness over the greater
trochanter, pain with resisted hip abduction, and intact sensation. Dr. Shannon indicated that the
trochanteric bursitis was refractory to physical therapy and he recommended a corticosteroid
injection. On July 2 and August 1, 2014 he noted that appellant had significant hip pain that was
refractory to conservative measures and recommended surgery.6 On August 12, 2014
Dr. Shannon performed a right hip trochanteric bursa excision and diagnosed right hip
trochanteric bursitis. On August 20, 2014 he treated appellant in follow up and noted that
appellant was doing well and ambulating without assistive devices. Dr. Shannon noted mild
swelling, no erythema, and a healed incision. He recommended that appellant advance her
activities as tolerated.
Appellant submitted a March 5, 2015 report from Dr. Rook, who reviewed his
June 26, 2014 evaluation. Dr. Rook opined that, based upon reasonable medical probability,
appellant’s right hip condition, left plantar fasciitis, and right soleus muscle rupture were workrelated conditions. On April 27, 2015 he reiterated that her diagnosed conditions were
employment related.
Appellant also provided treatment records from a physician assistant who diagnosed
neuropathy and major depressive disorder.
In a decision dated November 30, 2015, an OWCP hearing representative affirmed the
January 3, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
6

A July 30, 2014 right hip MRI scan revealed no acute or focal abnormality and possible surgical repair of the
gluteus medius syndrome at the right hip.
7

Supra note 2.

5

duty, the employee must submit sufficient evidence to establish that he experienced a specific
event, incident or exposure occurring at the time, place, and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury.8
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.9 To establish fact of injury in an
occupational disease claim, 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.10
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
It is undisputed that appellant’s duties as a supervisor included walking, bending, and
squatting. However, she failed to submit sufficient medical evidence to establish that her
diagnosed medical conditions were causally related to the specific accepted factors of her federal
employment.
Appellant submitted a June 26, 2014 report from Dr. Rook who noted appellant’s work
duties and her examination findings. Dr. Rook opined that, based upon appellant’s history and
her medical records, she developed an occupational right hip condition nine years earlier, a left
foot occupational disease in December 2013, and an acute occupational injury of her right calf on
March 11, 2013. He noted that she was wearing a left leg surgical boot and had to excessively
contract the right calf muscles to get her left leg over the curb to enter her workplace and
ruptured her right soleus muscle. Dr. Rook believed the soleus rupture was an acute injury that
was related to the left foot injury. He opined that all of the current problems with appellant’s
right lower extremity were indirectly related to the left foot occupational disease. Dr. Rook
indicated that she first had right hip pain at the post office performing job duties which included
8

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
9

S.P., 59 ECAB 184, 188 (2007).

10

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

11

Solomon Polen, 51 ECAB 341 (2000).

6

prolonged standing and pushing and pulling of heavy containers. He noted that appellant first
reported left foot pain while she was at work engaging in prolonged standing and walking which
progressively worsened during the holiday season. Dr. Rook advised that plantar fasciitis occurs
when the longitudinal arch collapses due to prolonged standing on a hard floor, being on one’s
feet all day long, walking on a hard floor, carrying heavy boxes while walking on a hard floor
and forcefully pushing and pulling heavy objects. He opined that it was more than likely that the
plantar fasciitis in her left foot was caused by the activities required of her job at the post office.
Dr. Rook indicated that prolonged weight-bearing activities contributed to the development of
plantar fasciitis, Achilles bursitis, and tendinitis on the right. On March 5, 2015 and April 27,
2015 he reiterated that appellant’s conditions were employment related.
Although Dr. Rook supported causal relationship, he provided only general and
speculative reasoning regarding how work factors caused the diagnosed conditions. He indicated
that the left foot condition largely led to all of the other diagnosed conditions, but in doing so
offered equivocal support for causal relationship noting that prolonged standing can lead to
inflammation along the fascia at the metatarsal heads.12 Dr. Rook also supported his conclusion
on causal relationship of the diagnosed conditions by noting that appellant had no traumatic
events outside of work. However, the Board has held that the fact that a condition manifests
itself during a period of employment alone does not raise an inference that there is a causal
relationship between the two.13 Dr. Rook also did not have a complete understanding of
appellant’s history as he did not address other possible causes of appellant’s condition as noted
by other physicians.14 Therefore, these reports are of limited probative value and insufficient to
meet appellant’s burden of proof.
Appellant submitted a February 21, 2013 report from Dr. Valenti who treated her for left
heel pain. Dr. Valenti noted appellant’s plantar fasciitis was a direct result of prolonged standing
at work. He indicated that she was currently in a removable cast and required a sitting job.
Although Dr. Valenti supported causal relationship, he did not provide medical rationale
explaining the basis of his conclusory opinion regarding the causal relationship.15 He did not
explain the process by which standing for an extended period of time at work would cause or
aggravate the diagnosed conditions. This report is thus insufficient to establish appellant’s
claim. Other reports from Dr. Valenti are also insufficient to establish the claim as he did not

12

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
13

L.D., Docket No. 09-1503 (issued April 15, 2010).

14

Dr. Valenti on June 6, 2014 indicated that he identified no new treatment options and opined that appellant
could have multiple sclerosis. Dr. Redosh on March 6, 2014 suggested a brain MRI scan to rule out any infectious,
autoimmune, compressive etiologies of myelopathy, including multiple sclerosis. See supra note 10.
15

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

7

provide an opinion on the causal relationship between appellant’s work factors and her
diagnosed conditions.16
Appellant submitted reports from Dr. Redosh dated March 6 to April 3, 2014, who
treated her for left foot pain since 2012. Dr. Redosh noted that appellant was placed in a cast and
ruptured her soleus muscle on the right side and fractured her metatarsal bone on the left foot.
Appellant underwent a plantar fasciotomy in July 2013. On August 4, 2014 Dr. Redosh noted
that diagnostic studies failed to show abnormalities to explain her symptoms. He diagnosed
idiopathic painful neuropathy in her left foot and recommended appellant continue on current
medical regimen. Dr. Redosh’s reports are insufficient to establish the claim as he did not
provide a history of injury17 or specifically address whether the accepted work duties caused or
aggravated a diagnosed medical condition.18
Similarly, reports from other physicians, such as Drs. West, Kubista, and Shannon, as
well as reports of diagnostic testing, are of limited probative value and insufficient to establish
the claim as these reports do not contain a physician’s opinion specifically addressing whether
appellant’s work duties had caused or aggravated a diagnosed medical condition.19
Appellant also submitted reports from a physician assistant and a physical therapist. The
Board has held that treatment notes signed by physician assistants or physical therapists have no
probative value as these providers are not considered physicians under FECA.20
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.21 Appellant failed to submit such evidence and OWCP
therefore properly denied appellant’s claim for compensation.
On appeal appellant, through counsel, disagrees with OWCP’s decision denying her
claim for compensation and noted that she submitted sufficient evidence to establish her claim.
As noted above, the Board finds the medical evidence insufficient to establish that appellant’s
diagnosed conditions are causally related to her employment. Reports from her physicians failed
16

See S.E., Docket No. 08-2214 (issued May 6, 2009) (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).
17

Frank Luis Rembisz, 52 ECAB 147 (2000).

18

See supra note 16.

19

See id.

20

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
21

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

8

to provide sufficient medical rationale explaining how appellant’s injuries are causally related to
particular employment factors.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an
occupational disease causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Haughton, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1566
Issued: December 31, 2018

Case Submitted on the Record

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

JURISDICTION
On July 11, 2017 appellant filed a timely appeal from a January 25, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 25, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her back, right
foot, and left hand conditions are causally related to the accepted May 11, 2016 employment
incident.
FACTUAL HISTORY
On May 11, 2016 appellant, then a 49-year-old rural carrier, filed a traumatic injury claim
(Form CA-1), alleging that, while in the performance of duty, she “was stepping down out of [her]
case step and tripped and grabbed case wing and it swung open and [she] fell on hand and
backside.” She alleged that she sustained injuries that day and had “pain in left shoulder, left lower
side, down left leg, right foot, and have a bad headache. Hands keeps shaking.” Appellant stopped
work the next day on May 12, 2016 and has not returned.
An OWCP authorization for examination and/or treatment (Form CA-16), was issued by
the employing establishment on May 11, 2016.
By development letter dated May 19, 2016, OWCP advised appellant of the deficiencies
of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted an x-ray of the cervical spine dated May 11, 2016 which
demonstrated degenerative disc disease and spondylosis at C3-4.
In a May 16, 2016 report, Dr. Aaron Lirette, a Board-certified family medicine specialist,
diagnosed sprain of ligaments of cervical and lumbar spine. He asserted that, on May 11, 2016,
appellant reported that she was tagging parcels and went to turn around to get a package when she
tripped. Appellant stated that she grabbed the wing case, which was not secured to the floor. It
swung around and she fell to the floor. Dr. Lirette opined that appellant’s conditions were causally
related to her work activities.
By brief notes dated May 13, 18, and 27, 2016, Dr. Gregory Scott Phillips, a Boardcertified family medicine specialist, advised that appellant was not capable of working from
May 12 to June 3, 2016 due to illness or injury.
On June 3, 2016 Dr. Phillips diagnosed cervicalgia and indicated that appellant had
“cervical neck pain after fall, history of c[ervical]-spine surgery.”
In a May 12, 2016 report, Dr. Phillips asserted that appellant fell at work and stated that
the fall was on the “same level from slipping, tripping[,] and stumbling with subsequent striking
against other object.” He diagnosed pain in right ankle and joints of right foot, pain in unspecified
joint, cervicalgia, and low back pain.
On May18, 2016 Dr. Phillips diagnosed other injury of unspecified body region and
reiterated that appellant fell at work on May 11, 2016.
In a duty status report (Form CA-17) dated June 13, 2016, Dr. Phillips diagnosed
musculoskeletal pain and released appellant to work on June 13, 2016.
2

An OWCP authorization for examination and/or treatment (Form CA-16), was issued by
the employing establishment on May 12, 2016. Appellant was authorized to visit Dr. Phillips. In
an attached attending physician’s report, dated May 26, 2016, Dr. Phillips continued to diagnose
injury of unspecified body region and checked a box marked “Yes” indicating his opinion that
appellant’s condition was caused or aggravated by an employment activity.
Appellant submitted a June 10, 2016 narrative statement reiterating the factual history of
her claim.
Appellant submitted a series of x-rays dated May 18, 2016. An x-ray of the right foot
revealed calcaneal enthesopathy. An x-ray of the thoracic spine showed multilevel degenerative
disc disease. An x-ray of the left shoulder revealed osteoarthritis of the acromioclavicular (AC)
joint. An x-ray of the right ankle demonstrated old nonunited avulsion fracture of the lateral
malleolus versus accessory ossicle. An x-ray of the cervical spine showed degenerative disc
disease at C3-4, multilevel bilateral neuroforaminal stenosis secondary to facet joint and
uncovertebral joint hypertrophy, and status postsurgical fusion from the level of C4 down to the
level of C7.
On May 27, 2016 Dr. Phillips reiterated his diagnoses and medical opinions.
In a duty status report (Form CA-17) dated June 8, 2016, Dr. Phillips diagnosed
musculoskeletal pain and advised that appellant was not able to return to work.
In an August 26, 2015 report, Dr. John G. Noles, a Board-certified anesthesiologist and
pain medicine specialist, diagnosed neck pain, lumbago, thoracic or lumbar radiculitis, sacroiliac
(SI) joint arthritis, sciatica due to displacement of lumbar disc, radiculopathy of arm, obesity, high
risk medications, bilateral hand numbness, and degenerative disc disease. He indicated that
appellant worked at a post office and delivered mail, and he stated that the pain radiated into both
shoulders and into all fingers of her right hand. Appellant also reported persistent lower back pain
radiating to the left ankle, left calf, right calf, left foot, and left thigh.
On November 10, 2015 Dr. Noles reported that appellant’s low back and leg pain was
worsening and diagnosed other cervical disc degeneration, mid-cervical region, chronic pain
syndrome, and myofascial pain.
In progress reports dated August 18, 2015 through January 19, 2016, two physician
assistants diagnosed neck pain, cervical stenosis of spinal canal, and cervical degenerative disc
disease and noted that appellant’s left shoulder condition began over five years ago and had
worsened since December 2014.
In reports dated January 12 and March 8, 2016, Dr. Noles diagnosed spondylosis of
lumbosacral region without myelopathy or radiculopathy and osteoarthritis of spine with
radiculopathy, lumbar region.
On May 25, 2016 Dr. Noles asserted that appellant fell at work on May 11, 2016 and
landed on her left hip, but used her left arm to try and catch her fall. Appellant felt that she had
aggravated her neck and had a constant headache since the fall. Dr. Noles reiterated his diagnoses
and noted that appellant had a history of neck surgery, which she underwent on October 17, 2015.
3

In a June 22, 2016 report, Dr. Michael T. Acurio, a Board-certified orthopedic surgeon,
diagnosed cervical and lumbar radiculopathy, cervical and lumbar disc disease, nonunion right
distal fibula, and degenerative joint disease (DJD) of the basilar joint, left hand. He asserted that
appellant was casing mail when she went to stop and she fell, landing with her left upper extremity
injuring her cervical spine, lumbar spine, and left arm. Dr. Acurio noted that appellant had
undergone a fusion surgery in October, had been unable to work since, and had continued pain.
By decision dated June 29, 2016, OWCP accepted that the May 11, 2016 employment
incident occurred as alleged, but denied the claim because the medical evidence of record failed
to establish a causal relationship between appellant’s diagnosed conditions and the accepted
May 11, 2016 work incident.
In notes dated June 13, 21, and 22, 2016, Dr. Phillips advised that appellant was not capable
of working from June 3 to 10, 2016 and June 13 to July 8, 2016 due to illness or injury.
In a duty status report (Form CA-17) dated June 22, 2016, Dr. Acurio diagnosed cervical
and lumbar disc radiculopathy and advised that appellant was not capable of working.
In duty status reports (CA-17 forms) dated June 21 and July 8, 2016, Dr. Phillips diagnosed
multiple areas of musculoskeletal pain “p[ost] fall” and advised that appellant was not capable of
working.
In a July 8, 2016 report, Dr. Phillips advised that appellant was not capable of working
from July 8 to 20, 2016 due to illness or injury.
On July 27, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
In a July 13, 2016 report, Dr. Acurio reiterated his diagnoses and opined that appellant’s
conditions were related to her accident at work. He asserted that appellant had preexisting cervical
and lumbar disc disease, but her accident had caused an exacerbation of her preexisting condition.
In a July 20, 2016 report, Dr. Phillips advised that appellant was not capable of working
from July 20 to August 22, 2016 due to illness or injury. On August 22, 2016 he reiterated his
diagnoses and reported that appellant’s “right foot was better until she twisted it last week and now
it hurts.” In a September 20, 2016 report, Dr. Phillips indicated that appellant’s right foot had been
hurting and “she ha[d] fallen twice since the last visit.” In a duty status report (Form CA-17) dated
December 19, 2016, he continued to diagnose multiple areas of musculoskeletal pain after fall and
advised that appellant was not capable of working.
By decision dated January 25, 2017, an OWCP hearing representative conducted a review
of the written record and affirmed the June 29, 2016 decision denying appellant’s claim for lack
of causal relationship.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
4

including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the alleged incident.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.7 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.8 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her back,
right foot, and left hand conditions are causally related to the accepted May 11, 2016 employment
incident.
An x-ray dated May 11, 2016 demonstrated degenerative disc disease and spondylosis at
C3-4 and x-rays dated May 18, 2016 revealed calcaneal enthesopathy, multilevel degenerative disc
disease, osteoarthritis of the AC joint, old nonunited avulsion fracture, and degenerative disc
disease at C3-4; however, that these diagnostic studies do not address the etiology of appellant’s
medical conditions. The Board has held, however, that diagnostic studies lack probative value as
they do not address whether the employment incident caused any of the diagnosed conditions.10

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10

See J.S., Docket No. 17-1039 (issued October 6, 2017).

5

Appellant submitted evidence from physician assistants. These reports do not constitute
competent medical evidence because a physician assistant is not a “physician” as defined under
FECA.11 Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to compensation benefits.13 For these reasons, the above-noted evidence is insufficient
to satisfy appellant’s burden of proof with respect to causal relationship.14
In his May 16, 2016 report, Dr. Lirette diagnosed sprain of ligaments of cervical and
lumbar spine and asserted that on May 11, 2016 appellant reported that she was tagging parcels
and went to turn around to get a package when she tripped and fell to the floor. He opined that
appellant’s conditions were causally related to her work activities. The Board finds, however, that
such generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how her
physical activity actually caused the diagnosed condition.15 Thus, Dr. Lirette’s report is of limited
probative value and insufficient to establish that appellant sustained an employment-related injury
on May 11, 2016.
Appellant also submitted reports from Dr. Noles who diagnosed multiple conditions,
including lumbago, thoracic or lumbar radiculitis, SI joint arthritis, sciatica due to displacement of
lumbar disc, radiculopathy of arm, bilateral hand numbness, degenerative disc disease, other
cervical disc degeneration, chronic pain syndrome, myofascial pain, spondylosis of lumbosacral
region, and osteoarthritis of the lumbar spine with radiculopathy in several reports that predate the
May 11, 2016 work incident. On May 25, 2016 Dr. Noles asserted that appellant fell at work on
May 11, 2016 and landed on her left hip, but used her left arm to try and catch her fall. He
reiterated his diagnoses and noted that appellant had a history of neck surgery, which she
underwent on October 17, 2015. The Board finds that Dr. Noles did not provide sufficient medical
rationale explaining how appellant’s new or preexisting conditions were caused or aggravated by
falling at work on May 11, 2016. The need for rationale is particularly important as the evidence
indicates that appellant had a number of preexisting medical conditions, including a history of neck
surgery in 2015.16 Therefore, the Board finds that the reports from Dr. Noles are insufficient to
establish causal relationship.

11

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
12

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

13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

14

See supra notes 3-6.

15

See K.W., supra note 13.

16

See P.M., Docket No. 18-0543 (issued November 7, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009).

6

In his reports, Dr. Phillips diagnosed pain in right ankle and joints of right foot, pain in
unspecified joint, cervicalgia, low back pain, and other injury of unspecified body region. He
further indicated that appellant had “cervical neck pain after fall, history of c[ervical]-spine
surgery.” In a May 12, 2016 report, Dr. Phillips asserted that appellant fell at work and stated that
the fall was on the “same level from slipping, tripping[,] and stumbling with subsequent striking
against other object.” In his May 26, 2016 attending physician’s report (Form CA-20), he
continued to diagnose injury of unspecified body region and checked a box marked “Yes”
indicating his opinion that appellant’s condition was caused or aggravated by an employment
activity. The Board has held that, without further explanation or rationale, a checked box is not
sufficient to establish causation.17 Dr. Phillips also diagnosed multiple areas of musculoskeletal
pain “p[ost] fall” and advised that appellant was totally disabled for work. The Board finds that
the diagnosis of “pain” is a description of a symptom rather than a clear diagnosis of the medical
condition.18 Moreover, Dr. Phillips’ diagnosis of “other injury of unspecified body region” is not
a firm diagnosis. Although he presented a diagnosis of appellant’s cervical condition, he did not
adequately address how this condition and objective findings were causally related to the May 11,
2016 employment incident. Dr. Phillips failed to provide a rationalized opinion explaining how
falling May 11, 2016 caused or aggravated appellant’s cervical condition. Again, the need for
rationale is particularly important as the evidence indicates that appellant had a number of
preexisting medical conditions, including a history of cervical spine surgery. Furthermore, the
May 26, 2016 form report of Dr. Phillips which supports causal relationship with a check mark is
insufficient to establish the claim.19 Thus, the Board finds that the reports from Dr. Phillips are
insufficient to establish that appellant sustained an employment-related injury.
Dr. Acurio diagnosed cervical and lumbar radiculopathy, cervical and lumbar disc disease,
nonunion right distal fibula, and DJD of the basilar joint, left hand. He asserted that appellant was
casing mail when she went to stop and she fell, landing with her left upper extremity injuring her
cervical spine, lumbar spine, and left arm. Dr. Acurio also noted that appellant had undergone a
fusion surgery in October and advised that appellant was totally disabled for work. In a July 13,
2016 report, he reiterated his diagnoses and opined that appellant’ conditions were related to her
accident at work. Dr. Acurio asserted that appellant had preexisting cervical and lumbar disc
disease, but her accident had caused an exacerbation of her preexisting condition. He noted that
appellant sustained an injury on May 11, 2016 during work-related activities. However, such
generalized statements do not establish causal relationship because they merely repeat her
allegations and are unsupported by adequate medical rationale explaining how her physical activity
actually caused the diagnosed conditions.20 The Board finds that Dr. Acurio’s opinion regarding

17

See Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

18

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

19
See C.W., Docket No. 14-1114 (issued August 25, 2014) (where the claimant, a correctional officer alleging that
he injured his lower back while responding to a call for assistance, submitted medical evidence and the Board found
that a Form CA-20 duty status report from the his treating physician which supported causal relationship with a check
mark was insufficient to establish the claim without further explanation or rationale).
20

See K.W., supra note 13.

7

the cause of appellant’s medical conditions are speculative and equivocal in nature.21 Dr. Acurio
did not sufficiently explain the reasons why diagnostic testing and examination findings led him
to conclude that the accepted May 11, 2016 work incident caused or contributed to the diagnosed
conditions. As noted, the need for rationale is particularly important as Dr. Acurio indicates that
appellant had a preexisting back condition. The fact that a condition manifests itself during a
period of employment is not sufficient to establish causal relationship.22 Temporal relationship
alone will not suffice.23 A physician’s opinion must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment exposure.24 For these reasons, Dr. Acurio’s reports are insufficient to meet
appellant’s burden of proof with respect to causal relationship.25
As appellant has not submitted any rationalized medical evidence to support her claim that
she sustained a back, right foot, or left hand injury causally related to the May 11, 2016
employment incident, she has not met her burden of proof to establish entitlement to compensation
benefits.26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her back,
right foot, and left hand conditions are causally related to the accepted May 11, 2016 employment
incident.

21

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
22

20 C.F.R. § 10.115(e).

23

See D.I., 59 ECAB 158, 162 (2007).

24

Victor J. Woodhams, supra note 8.

25

See supra notes 3-6.

26

The Board also notes that the employing establishment issued appellant a Form CA-16 on May 11 and 12, 2016
authorizing medical treatment. The Board has held that where an employing establishment properly executes a Form
CA-16, which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it
creates a contractual obligation, which does not involve the employee directly, to pay the cost of the examination or
treatment regardless of the action taken on the claim. See D.M., Docket No. 13-0535 (issued June 6, 2013); see also
20 C.F.R. §§ 10.300, 10.304.

8

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 31, 2018
Washington, DC

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

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

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

9