United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
__________________________________________

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

Docket No. 16-1457
Issued: May 18, 2017

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 July 1, 2016 appellant filed a timely appeal from a May 5, 2016 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 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 his burden of proof to establish right deep vein
thrombosis (DVT) causally related to factors of his federal employment.

1

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated November 7,
2016, the Board denied his request as his arguments could be adequately addressed in a decision based on a review
of the case record. Order Denying Request for Oral Argument, Docket No. 16-1457 (issued November 7, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 10, 2014 appellant, then a 52-year-old lead police officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained DVT due to sitting in the
police car for an extended period of time and standing for long periods of time. He stated that he
first became aware of this condition on August 15, 2012, but did not realize it was employment
related until August 2, 2014.3 Appellant stopped work on August 5, 2014 and returned to limited
duty on September 2, 2014.
In an October 30, 2014 report, Dr. Kashif Firozvi, a treating Board-certified oncologist,
diagnosed DVT, which he attributed to appellant’s prolonged periods of sitting or standing at
work. The most recent event occurred on August 2, 2014. Dr. Firozvi provided work
restrictions of avoiding strenuous activity and prolonged periods of immobility.
By letter dated November 19, 2014, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him regarding the medical and factual
evidence required and requested that he complete an attached development questionnaire.
OWCP afforded him 30 days to provide this information. Appellant did not respond to OWCP’s
request.
By decision dated December 23, 2014, OWCP denied appellant’s claim finding that
appellant had failed to establish the factual portion of his claim. It explained that he had not
established that the event occurred as alleged.
Following the denial of his claim, appellant submitted the following medical and factual
evidence.
In an April 23, 2014 report, Dr. Firozvi noted that appellant had been diagnosed with
repeated DVT and described appellant’s treatment. He opined that appellant could not be
subjected to prolonged periods of immobility due to his chronic risk of life threatening blood
clots.
By report dated August 22, 2014, Dr. Andrea D. Hulse, a treating Board-certified family
practitioner, noted that appellant had been under her care for treatment of DVT (or blood clot) of
his leg. She released him to return to work with restrictions including no prolonged standing,
walking, distance walking, lifting, and sitting without frequent standing and walking breaks once
an hour.
Dr. Firozvi, in a December 17, 2014 report, noted that appellant was being treated for
DVT, which he attributed to appellant’s prolonged periods of sitting or standing at work. He
provided work restrictions.

3

On the original claim form appellant noted the date he first became aware of the diagnosed condition as
August 2, 2014 and the date he first realized that it was employment related as August 15, 2014. He noted the
correct dates in an attachment. The employing establishment identified the correct dates in an October 23, 2014
letter.

2

In a February 5, 2015 report, Dr. Hulse diagnosed swelling and DVT/blood clots.
Appellant was released to return to work with restrictions, which included no standing more than
an hour and ability to frequently get out of the car.
In an April 23, 2015 letter, Dr. Firozvi diagnosed appellant with repeated DVT. He noted
that appellant developed a worsening clot burden above the inferior vena cava (IVC) filter.
Dr. Firozvi reported that appellant complained of persistent pain and swelling following long
periods of immobility at work.
Appellant submitted to OWCP a completed development questionnaire dated
April 30, 2015. He related that he had been in his current position two and one-half years, but
had been a police officer for six years.
The record contains health records dated April 13 and May 18, 2015. On April 13, 2015
appellant was seen by Youngsun P. Yoo, a family nurse practitioner, for medical surveillance
police certification examination. Physical examination findings and medical history were noted.
The report noted that appellant had right leg blood clots and was treated with Coumadin.
Appellant was seen by Dr. Han Quang Bui, an examining physician specializing in
family and occupational medicines, on April 18, 2015. Under illness history, the report noted
that appellant developed right leg DVT in 2013 and then was placed on Coumadin for six
months. Dr. Bui reported that appellant had been found to be medically qualified for police
officer duties in April 2014. He related that appellant developed a second DVT in 2014 and was
placed on Coumadin and IVC filter. A review of medical records revealed that appellant
developed a thrombosis above the IVC filter. Diagnosis included lower extremity proximal
venous thrombosis deep vessel.
In a September 17, 2015 report, Dr. Firozvi provided a history of appellant’s DVT
condition and the work restrictions caused by this condition. He reported that appellant appeared
to have another pulmonary embolism which he attributed to appellant’s prolonged periods of
sitting at a desk.
On September 29, 2015 appellant requested reconsideration. Subsequent to his request
for reconsideration, appellant submitted the following evidence.
In a March 13, 2015 report, Dr. Fatisha E. Gayton, an examining Board-certified
emergency medicine physician, noted that appellant was recently seen and treated at the Sibley
Memorial Hospital Emergency Room. She indicated that appellant was prohibited from
extended periods of standing at work. Dr. Gayton, in a March 13, 2015 emergency room report,
diagnosed right leg pain and chronic right femoral DVT. The procedures performed were listed
along with follow-up instructions.
In a May 22, 2015 report, Dr. Bui noted that he had reviewed Dr. Firozvi’s April 23,
2015 report attributing appellant’s leg swelling to prolonged standing as part of his work duties.
He requested additional information from Dr. Firozvi regarding appellant’s ability to perform the
duties of a police officer and the impact of his taking Coumadin.

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By decision dated November 16, 2015, OWCP found the evidence of record sufficient to
establish the factual portion of appellant’s claim. However, it further found that the medical
opinion evidence failed to adequately explain how the diagnosed DVT was causally related to
the identified work factors.
On February 8, 2016 appellant requested reconsideration.
In a January 29, 2016 report, Dr. Firozvi noted that he had treated appellant since
August 2014 for extensive DVT and pulmonary emboli. He attributed these conditions to
appellant’s duties of standing for four to six hours without relief and on inclines. In support of
this conclusion, Dr. Firozvi noted that comprehensive testing had been performed which showed
no other cause for the DVT. In addition, appellant has no family history of DVT.
By decision dated May 5, 2016, OWCP denied modification. It found that Dr. Firozvi’s
report was conclusory and insufficiently rationalized to establish that the diagnosed condition
was causally related to the identified work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); DʹWayne Avila, 57 ECAB
642 (2006).
8

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whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 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.10
ANALYSIS
OWCP accepted that appellant’s job as a lead police officer involved extended periods of
sitting in a police car and prolonged periods of standing or sitting. It initially denied his claim as
it found that he had not established the factual portion of his claim. OWCP subsequently denied
the claim as it found the medical evidence of record failed to establish a causal relationship
between the accepted work factors and the claimed DVT and thrombosis.
The record contains multiple reports from Dr. Firozvi diagnosing DVT which he
attributed to appellant’s work duties. In reports dated April 23, October 30 and December 17,
2014, September 17, 2015, and January 29, 2016, he attributed the DVT condition to appellant’s
prolonged sitting, periods of immobility and standing at work. While Dr. Firozvi, in his
January 29, 2016 report, opined that the cause of appellant’s DVT was his prolonged standing
and sitting for four to six hours since there was no family history of this condition and testing
showed no other cause, such commentary is merely a general conclusion without providing
medical rationale. However, he offered no explanation as to how and why the work factors of
prolonged sitting and standing would cause the diagnosed condition. A mere conclusory opinion
provided by a physician without the necessary rationale explaining how and why the incident or
work factors were sufficient to result in the diagnosed medical condition is insufficient to meet a
claimant’s burden of proof to establish a claim.11 Because Dr. Firozvi has not explained how or
why appellant’s work activities caused the diagnosed condition, his report is insufficient to meet
his burden of proof.12
The record also contains reports from Drs. Gayton, Hulse, and Bui. A March 13, 2015
emergency room report from Dr. Gayton diagnosed right leg pain and chronic right femoral
DVT. Appellant also submitted reports dated August 22, 2014 and February 5, 2015 from
Dr. Hulse diagnosing DVT/blood clots and swelling. Both Dr. Gayton and Dr. Hulse indicated
that appellant could work with restrictions. Dr. Bui, in an April 18, 2015 report, noted a medical
history that appellant had been found medically qualified to be a police officer, and diagnosed
lower extremity proximal deep vessel venous thrombosis. None of these reports offered any
opinion regarding the cause of appellant’s condition or mention his work history. The Board has
held that medical opinion evidence that offers no opinion regarding the cause of an employee’s

9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

J.D., Docket No. 14-2061 (issued February 27, 2015).

12

See Beverly A. Spencer, 55 ECAB 501 (2004).

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condition is of limited probative value on the issue of causal relationship.13 Thus, the reports
from Drs. Gayton, Hulse, and Bui are insufficient to establish appellant’s claim.
The health record from Ms. Yoo has no probative value as medical evidence. The Board
has noted that a nurse or nurse practitioner is not considered a physician as defined under FECA
and, therefore, her opinion is of no probative value.14
Consequently, appellant has offered insufficient medical evidence to establish his claim.
As noted above, causal relationship is a medical question that must be established by a probative
medical opinion from a physician.15 The physician must accurately describe appellant’s work
duties and medically explain the pathophysiological process by which these duties would have
caused or aggravated his condition.16 Because appellant has not provided such medical opinion
evidence, he has failed to meet his burden of proof.
On appeal appellant contends that the medical evidence submitted is sufficient to
establish his claim. He states that his physician specifically attributed his condition to his
employment duties and does not understand why these reports are insufficient to establish his
claim. As discussed above, none of the reports from appellant’s physicians contain medical
rationale explaining how appellant’s duties caused or aggravated his DVT condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right DVT
causally related to factors of his federal employment.

M.S., Docket No. 16-1497 (issued December 20, 2016); S.E., Docket No. 08-2214 (issued May 6, 2009);
Jaja K. Asaramo, 55 ECAB 200 (2004).
13

See B.B., Docket No. 09-1858 (issued April 16, 2010) (nurses); L.D., 59 ECAB 648 (2008) (nurse
practitioners).
14

15

I.J., supra note 10; Roy L. Humphrey, supra note 7.

16

I.J., id.; Victor J. Woodhams, supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2016 is affirmed.
Issued: May 18, 2017
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

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

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

Docket No. 08-2484
Issued: June 2, 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 September 17, 2008 appellant filed a timely appeal from an August 25, 2008 decision
of the Office of Workers’ Compensation Programs, denying modification of February 1 and
August 3, 2007 decisions that denied her claim for an injury on December 15, 2006. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury to her knees on December 15, 2006
while in the performance of duty.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated February 7, 2008, the Board
affirmed Office decisions dated February 1 and August 3, 2007 denying appellant’s claim for a
bilateral knee injury on December 15, 2006. The facts of the previous Board decision are
incorporated herein by reference.
On February 23, 2008 appellant requested reconsideration and submitted additional
medical evidence. In a January 28, 2008 report, Dr. John W. Ellis, Board-certified in family
medicine and environmental medicine, reviewed appellant’s medical history and provided
findings on physical examination. He discussed appellant’s claim for an injury on December 15,
2006 and also her two accepted knee claims. Regarding the December 15, 2006 claim, Dr. Ellis
stated that she was delivering mail and tripped on a piece of concrete but did not fall. Appellant
felt pain in her left knee and it became swollen. Over the next several days her right knee began
to hurt. On physical examination of appellant’s right knee, Dr. Ellis noted arthroscopic scars.
There was no crepitation on movement of the patella. There was laxity of the medial collateral
and anterior cruciate ligaments. Circumference of the right knee was 39.9 centimeters. There
was no fluid in the right knee. Appellant had 84 degrees of flexion and full extension of the right
knee. On physical examination of the left knee, there was fluid behind the patella. There was
laxity of the lateral collateral ligament. There was crepitation on movement of the patella. There
was also a click as the patella did not track well on the lateral aspect of the knee. The left knee
had 96 degrees of flexion and full extension. Circumference of the left knee measured 40.8
centimeters. Dr. Ellis attributed appellant’s right knee conditions to her 2005 accepted
occupational claim under OWCP File No. xxxxxx680. Her diagnosed right knee conditions were
acute medial meniscus tear and strain of the anterior cruciate and posterior cruciate ligaments,
traumatic arthritis/chondromalacia and laxity of the medial collateral ligament due to a partial
meniscectomy. He diagnosed a contusion of the left knee with chondromalacia of the patella and
medial and lateral femoral condyles as related to appellant’s accepted December 27, 2007
employment injury. Regarding appellant’s claim for an injury on December 15, 2006 which is
the subject of this appeal, Dr. Ellis diagnosed internal derangement with strain of the lateral
collateral ligament, chondromalacia and probable meniscus tear of the left knee. She did not
remember which foot became caught on a piece of concrete but she tripped and almost fell. This
caused sudden strain and internal derangement of the left knee. Appellant had immediate
swelling of the left knee which showed an acute internal injury.

1

Docket No. 07-2232 (issued February 7, 2008). On December 19, 2006 appellant, then a 43-year-old letter
carrier, filed a claim alleging that she injured both knees on December 15, 2006 when she tripped on an uneven
driveway surface and almost fell. By decisions dated February 1 and August 3, 2007, the Office denied appellant’s
claim on the grounds that the medical evidence did not establish that she sustained an injury to her knees on
December 15, 2006 causally related to her employment. Appellant has two cases accepted for knee conditions.
OWCP File No. xxxxxx680 is an occupational disease claim accepted for right knee medial meniscus tear, right
knee cruciate ligament strains, right knee traumatic arthritis and right knee chondromalacia patella beginning in
November 2005. OWCP File No. xxxxxx229 is a traumatic injury claim accepted for a left knee contusion and left
knee medial meniscus tear sustained on December 27, 2007. Appellant is receiving compensation for temporary
total disability on the periodic rolls for her accepted left knee condition and underwent left knee arthroscopy on
June 13, 2008.

2

By compensation order dated August 25, 2008, the Office reviewed the claim on the
merits and denied modification.
LEGAL PRECEDENT
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.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she 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 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 claimant.4
ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained an
injury to her knees on December 15, 2006 while in the performance of duty.
Dr. Ellis reviewed appellant’s medical history and provided findings on physical
examination. He discussed her claim for an injury on December 15, 2006 and also her two
accepted knee claims. Regarding the December 15, 2006 claim, Dr. Ellis stated that appellant
was delivering mail and tripped on a piece of concrete but did not fall. Appellant felt pain in her
left knee and it became swollen. Over the next several days her right knee began to hurt.
Dr. Ellis diagnosed right knee acute medial meniscus tear and strain of the anterior cruciate and
posterior cruciate ligaments, traumatic arthritis/chondromalacia and laxity of the medial
collateral ligament due to a partial meniscectomy. He attributed these right knee conditions to
appellant’s 2005 accepted occupational claim under OWCP File No. xxxxxx680. Dr. Ellis
diagnosed a contusion of the left knee with chondromalacia of the patella and medial and lateral
2

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

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
4

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

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femoral condyles as causally related to appellant’s accepted December 27, 2007 employment
injury.
Regarding appellant’s claim for a bilateral knee injury on December 15, 2006, Dr. Ellis
diagnosed internal derangement with strain of the lateral collateral ligament, chondromalacia and
probable meniscus tear of the left knee. He stated that appellant’s left knee conditions were the
result of an acute injury that occurred when appellant caught one of her feet on a piece of
concrete, tripped and almost fell. This caused sudden strain, internal derangement and swelling
of the left knee. Dr. Ellis’ opinion is not consistent with contemporaneous medical evidence. In
its February 7, 2008 decision, the Board noted that, on December 19, 2006, a few days after the
claimed December 15, 2006 bilateral knee injury, Dr. O.E. Reavill noted knee pain but stated
that x-rays and findings on physical examination were normal. Dr. Reavill opined that appellant
could perform her regular work. Dr. Ellis did not explain how the left knee conditions he
diagnosed in January 2008, internal derangement and strain of the lateral collateral ligament,
chondromalacia and probable meniscus tear of the left knee, were causally related to the
December 15, 2006 work incident. Thorough medical rationale is necessary in light of the fact
that diagnostic testing and physical examination at the time of the incident did not reveal any of
these conditions. Such rationale is important because Dr. Ellis did not examine appellant until
one year after the December 15, 2006 work incident. Additionally, clear medical rationale is
needed to distinguish the December 15, 2006 claim for bilateral knee injury from appellant’s
other accepted right and left knee claims. For these reasons, the report of Dr. Ellis is not
sufficient to establish that appellant sustained a bilateral knee injury causally related to the
December 15, 2006 tripping incident at work.
Appellant failed to provide rationalized medical evidence establishing that she sustained
an injury to her knees causally related to the December 15, 2007 tripping incident. Therefore,
appellant did not meet her burden of proof. The Office properly denied her claim.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury to her knees
on December 15, 2006 while in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 25, 2008 is affirmed.
Issued: June 2, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, LEHI POST OFFICE,
Lehi, UT, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0105
Issued: May 21, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On October 30, 2020 appellant through counsel, filed a timely appeal from a May 5, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-0105.
In a letter dated April 30, 2021, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0105 is dismissed.
Issued: May 21, 2021
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 14-0199
Issued: September 16, 2015

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant, through counsel, filed a timely appeal from a
September 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).

1

Alan J. Shapiro, Esq., filed the instant appeal on appellant’s behalf on November 4, 2013. The application for
review form (AB-1) contains appellant’s signature designating him as the authorized representative. On
November 18, 2013 he submitted a 22-page brief in support of the appeal. The Board notes that appellant
subsequently submitted a letter to the Clerk of the Appellate Boards dated December 3, 2014, stating in part that
“Attorney Tinkle still the attorney in this matter.” On April 20, 2015 the Clerk of the Appellate Boards received
from Marshall J. Tinkle, Esq. a 22-page brief dated November 27, 2013, which was nearly identical to the one
previously submitted by Mr. Shapiro. Pursuant to the Board’s Rules of Procedure, appellant can only have one duly
authorized representative before the Board. Such representative will continue to be recognized unless the
representative withdraws or abandons such capacity, or appellant directs otherwise. (See 20 C.F.R. § 501.9). As the
instant appeal was filed by Mr. Shapiro, with appellant’s signature designating him as the authorized representative,
and appellant has not provided written direction removing Mr. Shapiro as his authorized representative, the Board
will acknowledge him as appellant’s representative in this appeal.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has sustained any permanent impairment causally related
to his accepted lumbar and thoracic conditions.
FACTUAL HISTORY
This case has been before the Board on prior appeal. The history of the case as set forth
in the prior decision is incorporated herein by reference. The facts pertinent to this appeal will
be summarized herein.
Appellant, a 46-year-old pipefitter helper, injured his back on January 21, 2004. He filed
a claim for benefits on January 26, 2004, which OWCP accepted for lumbar and thoracic strain.
In a February 5, 2008 report, appellant’s treating physician, Dr. Frank A. Graf, Boardcertified in orthopedic surgery, reviewed the history of injury and noted that appellant had
experienced mid-lower back pain which affected his performance at work. He stated that
appellant had undergone a magnetic resonance imaging (MRI) scan of the thoracolumbar spine
which documented a lumbar disc herniation at L4-5. Dr. Graf reported that, due to these
conditions, he had assigned appellant to light duty. He stated that appellant had a lumbosacral
spine rating of class 2 based on a disc herniation, single level, without surgery.
Dr. Graf determined that under Table 17-4 of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides), appellant had a
default value of 12 percent, whole person permanency, with a functional history adjustment
grade modifier of 1; a physical examination grade modifier of 1; and a clinical studies grade
modifier of 2. Dr. Graf assigned a 10 percent whole person permanent impairment or a 24
percent lower extremity impairment rating.
In a Form CA-7 dated June 25, 2008, appellant requested a schedule award.
In a July 30, 2008 report, Dr. David I. Krohn, a Board-certified internist and OWCP
medical adviser, disagreed with Dr. Graf’s interpretation of the May 5, 2004 MRI scan. He
asserted that Dr. Graf had incorrectly interpreted the MRI scan to show a disc herniation, while
the radiologist’s report did not mention a herniated disc. Dr. Krohn found no documentation in
the medical record or in Dr. Graf’s examination to support that appellant had work-related
impairment of either lower extremity. In the absence of medical evidence, there was no basis to
grant a schedule award.
OWCP found a conflict in medical evidence between the opinions of Dr. Graf,
appellant’s treating physician, and Dr. Krohn, as to whether appellant had any permanent
impairment. It referred appellant to Dr. Jonathan W. Sobel, a specialist in general surgery, for an
2

5 U.S.C. § 8101 et seq.

2

impartial medical examination to resolve the conflict. In a November 20, 2008 report, Dr. Sobel
found that appellant had no ratable impairment of the lower extremities under either the fifth or
sixth edition of the A.M.A., Guides. He noted that appellant’s May 7, 2004 MRI scan showed
mild degenerative disc disease in the lower lumbar spine and some minor disc bulging with
narrowing at L4-5. Dr. Sobel ascribed this condition to age-appropriate degenerative disc
disease with minor disc bulges and no evidence of disc herniation. He concluded that appellant
had sustained an overuse sprain/strain of the lumbosacral spine on January 28, 2004. Dr. Sobel
found no evidence in the medical record showing that appellant had sustained a herniated disc at
any level in the lumbar spine causally related to his January 2004 work injury.
Based upon the report of Dr. Sobel, OWCP found in a January 2, 2009 decision that
appellant had no ratable impairment from an accepted condition and denied appellant’s request
for a schedule award.
Appellant requested reconsideration and submitted additional medical evidence. In
reports dated March 4 and April 8, 2010, Dr. Andrew Forrest, a physiatrist, found a 25 percent
whole person impairment of appellant’s left lower extremity using both the fifth and later the
sixth edition of the A.M.A., Guides.
In a June 15, 2010 report, Dr. George L. Cohen, a Board-certified internist and OWCP
medical adviser, reviewed Dr. Forrest’s March 4 and April 8, 2010 reports. Using the same
information, the medical adviser found a nine percent impairment of the left lower extremity due
to lumbar radiculopathy. He explained that the accepted back condition affected an extremity
and caused impairment of that extremity. The medical adviser explained that Dr. Forrest
improperly rates the lumbar spine and/or whole person impairment which is not allowed under
FECA.
OWCP granted appellant a schedule award on June 24, 2010 for nine percent permanent
impairment of the left lower extremity.
Appellant requested reconsideration of the schedule award on August 30, 2010 and
submitted a June 28, 2010 report from Dr. Forrest, who reiterated his disagreement with the
earlier findings. Dr. Forrest reiterated that appellant had a 25 percent left leg impairment under
the sixth edition of the A.M.A., Guides.
In a September 13, 2010 report, Dr. Craig Uejo, Board-certified in occupational
medicine, and serving as an OWCP medical adviser, reviewed Dr. Forrest’s April 8, 2010 report.
He thoroughly explained the impact of the July/August 2009 edition of The Guides Newsletter
and found that appellant had no ratable impairment of the left leg under the sixth edition of the
A.M.A., Guides. Dr. Uejo explained that Dr. Forrest’s impairment rating did not follow the
A.M.A., Guides.
Based on Dr. Uejo’s report, by decision dated September 20, 2010, OWCP modified the
June 24, 2010 schedule award decision finding that there had been no impairment of the left
lower extremity under the sixth edition of the A.M.A., Guides as there were no notable findings
of sensory or motor loss in the lower extremity. A December 10, 2010 request for
reconsideration was filed and a November 24, 2010 report of Dr. Forrest was submitted in
3

support. Dr. Forrest disagreed that there were no findings of sensory or motor loss and identified
a hyporeflexic internal hamstring tendon jerk that demonstrated “in an indirect sense” motor
and/or sensory weakness. Dr. Uejo, as OWCP medical adviser, disputed this argument finding
that the reflex abnormalities were not ratable factors under the sixth edition. OWCP denied
appellant’s request for reconsideration by decision dated April 22, 2011. It further noted that the
earlier modification of the schedule award was incorrect; OWCP was rescinding the schedule
award and establishing an overpayment based on the payment for the original schedule award. A
May 30, 2011 request for reconsideration was filed but by decision dated July 28, 2011 OWCP
denied the request without reviewing the merits of the case.
In a decision dated August 21, 2012, the Board affirmed OWCP’s April 22, 2011 decision
rescission of the schedule award.3 The Board found that OWCP had not accepted a herniated
disc as a result of the January 2004 employment injury. While the impairment ratings were
premised on an October 14, 2009 MRI scan which identified a herniated disc and provided a
medical cause for a diagnosis of radiculopathy, the medical record did not support that this
condition was causally related to appellant’s 2004 injury. The facts presented in the Board’s
August 21, 2012 decision are hereby incorporated by reference.
On August 25, 2012 appellant again requested a schedule award.
Dr. Graf, in his capacity as appellant’s treating physician, provided an October 2, 2012
report which repeated his earlier diagnosis of a herniated disc at L4-5. He found on examination
that appellant had a slow and hesitant gait with no motor deficits; he showed pain reaction on
manipulative, palpation spring tests at thoracic levels T7-8 in a prone position and at lumbar
levels L3-4, L4-5 and L5-S1, with tenderness to palpation in both sciatic notches. Dr. Graf
stated that appellant’s symptoms correlated with objective findings from MRI scan results. He
advised that these findings supported the existence of a herniated L4-5 level disc and with
intermittent inflammation of the L5 spinal nerve roots. Dr. Graf asserted that these physical
findings also correlated with a secondary diagnosis of thoracic level intervertebral disc and facet
joint with myofascial trigger points to the right of the midline at thoracic levels.
Dr. Graf found that appellant had a class 1 impairment and a seven percent lower
extremity impairment under Table 17-4, Lumbar Spine Regional Grid, Lower Extremity
Impairments, at page 570 of the A.M.A., Guides.4 Using the Adjustment Grid, functional
history, at Table 17-6, section 17.3a, at page 575 of the A.M.A., Guides,5 he found that appellant
had a grade modifier of 2 for functional history based on his score of 40 for the daily activities
lower extremities questionnaire, a moderate problem; with regard to physical examination, he
assigned a grade modifier of 1, for a mild problem, pursuant to Table 17-7, section 17.3b, at page
576 of the A.M.A., Guides;6 and a grade modifier of 1 for clinical studies, a mild problem
3

Docket No. 11-1915 (issued August 21, 2012).

4

A.M.A., Guides 570.

5

Id. at 575.

6

Id. at 576.

4

pursuant to Table 17-8, section 17.3c at page 578 of the A.M.A., Guides7 based on clinical
studies.
Based on the above findings, Dr. Graf applied the net adjustments from functional
history, physical examination and clinical studies to reach a net, adjusted grade modifier of plus
one, at the net adjustment formula at page 582 of the A.M.A., Guides.8 He stated:
“An eight percent impairment of the thoracolumbar spine is present. This
impairment of the thoracolumbar spine directly affects lower extremity functions.
An 8 percent thoracolumbar impairment affecting lower extremity functions
including capacity to maintain strength and function and including intermittent L5
lower extremity radiculopathy, the 8 percent impairment is converted to a 19
percent lower extremity permanent impairment, reference Table 16-10.”
In a December 6, 2012 report, Dr. Morley Slutsky, Board-certified in occupational
medicine and an OWCP medical adviser, determined that Dr. Graf’s report was unclear as to
whether the 19 percent lower extremity impairment rating represented a total for both lower
extremities or 19 percent for each lower extremity. He also indicated that Dr. Graf’s rating
lacked validity because he also had relied on Chapter 17, the spinal chapter in the A.M.A.,
Guides; he asserted that this chapter is not used by OWCP and is not considered in the final
rating calculations. Finally, the medical adviser explained that because Dr. Graf had not
diagnosed objective sensory or motor deficits in appellant’s lower extremities, there was no basis
for an impairment rating in either lower extremity using the July/August 2009 edition of The
Guides Newsletter or the A.M.A., Guides.
By decision dated April 2, 2013, OWCP denied appellant’s schedule award claim. It
found that Dr. Graf’s October 2, 2012 report was not sufficient to alter its previous finding of no
permanent impairment in the lower extremities under the A.M.A., Guides.
On April 13, 2013 appellant requested an oral hearing and submitted a March 27, 2013,
report of Dr. Graf. Dr. Graf stated that on examination appellant had a diminished sensibility to
touch with brush in the lateral thigh, lateral leg below the knee on the left and diminished
vibration sense in the same areas. Appellant’s symptoms followed an L5 spinal nerve root
pattern of the left lower extremity compared with the right lower extremity. Dr. Graf diagnosed
a left-sided disc herniation at the L4-5 level with mild impingement on the exiting nerve root.
He also diagnosed a thoracic disc bulge, and degenerative endplate changes at T4-5, as noted by
MRI scan. Dr. Graf reported that, although appellant had normal electromyogram (EMG) and
nerve conduction velocity (NCV) studies, he opined that negative studies do not rule out
radiculopathy. He asserted that given the consistency and findings over time and the functional
impairments involved that he believed appellant had objective sensory deficits in a
predominantly L5 peripheral spinal nerve root pattern. Dr. Graf determined that additional
changes at thoracic levels did not appear to cause radiculopathy but contributed to his functional
7

Id. at 578.

8

Id. at 582.

5

impairments. He related that other physicians had found diminished light touch and pinprick
sensation in the same pattern he described above.
Dr. Graf found that appellant had a class 2 impairment, a moderate problem, which
yielded a 24 percent left lower extremity impairment under Table 16-12, Peripheral Nerve
Impairment Grid, Lower Extremity Impairments, at page 534 of the A.M.A., Guides.9 Using the
Adjustment Grid, functional history, at Table 16-6, section 16.3a, at page 516 of the A.M.A.,
Guides,10 Dr. Graf found that appellant had a grade modifier of 2 for functional history based on
his score of 36 for the daily activities lower extremities questionnaire, a moderate problem; with
regard to physical examination, he assigned a grade modifier of 2, for a moderate problem,
pursuant to Table 16-7, section 16.3b, at page 517 of the A.M.A., Guides;11 and a grade modifier
of 2 for clinical studies, a moderate problem based on MRI scan results showing far lateral L4-5
foraminal disc herniation pursuant to Table 16-8, section 17.3c at page 519 of the A.M.A.,
Guides.12
Based on the above findings, Dr. Graf applied the net adjustments from functional
history, physical examination and clinical studies, with grade modifiers to reach a net, adjusted
grade modifier of zero, at the net adjustment formula at page 521 of the A.M.A., Guides.13 He
stated that under Table 16-11 at page 533 of the A.M.A., Guides14 appellant had sensory
abnormalities in the L5 spinal nerve root, with objective evidence of lower extremity motor loss
with absent reflex activity.
By decision dated September 24, 2013, an OWCP hearing representative affirmed the
April 2, 2013 decision. She found that Dr. Graf’s updated impairment rating lacked probative
value, due to the inconsistent findings in appellant’s examinations, and that it was essentially
duplicative of his prior reports which had served to create the original conflict of opinion.
Therefore, OWCP’s hearing representative determined that the weight of medical opinion
continued to rest with Dr. Sobel, the impartial medical examiner, who found no permanent
impairment in the lower extremities.
LEGAL PRECEDENT
The schedule award provision of FECA15 and its implementing regulations16 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
9

Id. at 534.

10

Id. at 516.

11

Id. at 517.

12

Id. at 519.

13

Id. at 582.

14

Id. at 533.

15

5 U.S.C. § 8107.

16

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

6

loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.17 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.18
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.19 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.20
ANALYSIS
On appeal, appellant’s counsel challenges OWCP’s reliance on the July/August 2009
edition of The Guides Newsletter in rating nerve root impairments, which, he asserts, lacks any
scientific basis or probative value. He contends that appellant was entitled to a schedule award
for a 24 percent left lower extremity impairment because Dr. Graf based his rating on the
appropriate tables and protocols of the sixth edition of the A.M.A., Guides.
Counsel asserts that previous medical reports had verified findings of radiculopathy and
that Dr. Graf made findings of sensory nerve impairment which were a sufficient basis to render
an impairment rating for sensory impairment of the spine. He argues that OWCP wrongfully
relied on a normal EMG study. Counsel contends that an EMG study is not helpful with
diagnosing impairments at the nerve root level.
The Board does not accept the contentions raised by appellant’s attorney on appeal.
OWCP has implemented guidelines that impairment to the upper or lower extremities caused by
a spinal injury should be evaluated in accordance with the article “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition” in the July/August 2009 edition of The Guides
Newsletter published by the A.M.A., Guides.21 OWCP has adopted The Guides Newsletter to
rate spinal nerve impairments consistent with sixth edition methodology. Appellant has not
17

Id.

18

Veronica Williams, 56 ECAB 367, 370 (2005).

19

L.J., Docket No. 10-1263 (issued March 3, 2011).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(3) (January 2010). As noted above this newsletter has been reproduced with the permission of the
American Medical Association as Exhibit 4 in Chapter 3.700.

7

submitted medical evidence to establish that he is entitled to a schedule award pursuant to these
guidelines, which have been adopted under both OWCP and Board case law.22
OWCP accepted the conditions of lumbar and thoracic sprain. A schedule award is not
payable for injury to the spine.23 However, a claimant may be entitled to a schedule award for
permanent impairment to an extremity even though a spinal condition caused the impairment.24
Appellant must first establish impairment to a scheduled member caused by the accepted
condition before an impairment from an unrelated, preexisting condition becomes relevant,
causally related, and can be assessed.25
In its August 21, 2012 decision, the Board found that the weight of the medical evidence
prior to appellant’s October 14, 2009 MRI scan established that he did not suffer a herniated disc
as a result of his 2004 employment injury. Appellant has provided no medical opinion evidence
to refute this Board finding. Subsequent to the Board’s decision, appellant submitted Dr. Graf’s
October 2, 2012 and March 27, 2013 reports. These reports do not establish that appellant had a
permanent impairment caused by his accepted lumbar and thoracic strains following the
protocols of The Guides Newsletter. In his October 2, 2012 report, Dr. Graf reiterated his
diagnosis of a herniated disc at L4-5 and stated findings of pain and tenderness on examination at
T7-8 and L3-4, L4-5 and L5-S1. He asserted that appellant’s symptoms correlated with
objective findings from MRI scan results. Dr. Graf determined that there was a secondary
diagnosis involving thoracic level disc and facet joint symptoms. He rated a 19 percent lower
extremity impairment based on these findings. The medical adviser correctly determined that
Dr. Graf’s impairment rating lacked validity because he continued to rely on Chapter 17 of the
A.M.A., Guides, rather than the July/August 2009 edition of The Guides Newsletter.
Dr. Graf alternatively found in his March 27, 2013 report that appellant had a 24 percent
left lower extremity impairment under Table 16-12 at page 534 of the A.M.A., Guides. He
stated that on examination appellant had a diminished sensibility to touch with brush in the
lateral thigh, lateral leg below the knee on the left and diminished vibration sense in the same
distribution, i.e., an L5 spinal nerve root pattern of the left lower extremity as compared with the
right lower extremity. Dr. Graf further noted that appellant experienced pain at L4-5 and T9-10.
He reiterated his diagnosis of herniation at the L4-5 level as indicated by MRI scan. Dr. Graf
stated that under Table 16-11 at page 533 appellant had sensory abnormalities in the L5 spinal
nerve root, with objective evidence of lower extremity motor loss with absent reflex activity.
Dr. Graf’s March 27, 2013 report is not sufficient. While he noted that appellant had
sensory abnormalities in the L5 spinal nerve root distribution, he did not provide sufficient
objective findings to meet the standards for rating a lower extremity impairment caused by
appellant’s accepted lumbar and thoracic conditions set forth in the sixth edition of the A.M.A.,
Guides and the July/August 2009 edition of The Guides Newsletter. Dr. Graf’s impairment
22

See, e.g., N.E., Docket No. 13-187 (issued April 19, 2013).

23

Pamela J. Darling, 49 ECAB 286, n.7 (1998).

24

Thomas J. Engelhart, 50 ECAB 319, n.8 (1999).

25

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

8

evaluation is still premised upon his diagnoses of herniated thoracic and lumbar discs, which are
not accepted as causally related to the employment injury. OWCP properly determined that
Dr. Graf’s reports did not provide a basis for a schedule award under FECA based on his
accepted conditions.
The Board will affirm the September 24, 2013 OWCP decision.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment causally
related to his accepted lumbar and thoracic conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.26
Issued: September 16, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

26

Richard J. Daschbach, Chief Judge, participated in the preparation of the decision but was longer a member of
the Board after May 16, 2014.

9


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

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

Docket No. 15-0670
Issued: July 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 9, 2015 appellant filed a timely appeal from September 3 and 22, 2014
nonmerit decisions of the Office of Workers’ Compensation Programs.1 As OWCP issued its
last merit decision on August 8, 2014, more than 180 days from the filing of this appeal, the
Board lacks jurisdiction to review the merits of her claim pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether OWCP, in its September 3, 2014 decision, properly denied
appellant’s request to reopen her case for further merit review under 5 U.S.C. § 8128; and

1

Pursuant to 20 C.F.R. § 501.5(b), appellant submitted a timely request for oral argument before the Board. By
order dated May 26, 2015 the Board, after exercising its discretion, denied the request on the grounds that the
argument raised could be adequately addressed in a decision based on a review of the record. Order Denying
Request for Oral Argument, Docket No. 15-670 (issued May 26, 2015).
2

5 U.S.C. § 8101 et seq.

(2) whether OWCP, in its September 22, 2014 decision, properly denied her request for further
merit review of its finding that she was not entitled to a schedule award.
FACTUAL HISTORY
On June 4, 2009 appellant, then a 34-year-old letter carrier, filed an occupational disease
claim alleging that she sustained aching and burning in her big toes causally related to factors of
her federal employment. She did not stop work. Appellant’s supervisor indicated that appellant
was performing limited duty. OWCP accepted the claim for an aggravation of a mild bunion
(hallux valgus) deformity of the bilateral great toes.3
OWCP previously accepted that appellant sustained a bilateral toe blister under file
number xxxxxx048. It doubled that case into the current file number.
On June 30, 2010 Dr. Stacey L. Bielinski, an attending podiatrist, released appellant to
return to her usual employment. On July 1, 2010 appellant returned to work without restrictions.
On March 6, 2012 appellant filed a claim for a schedule award. She submitted an
impairment evaluation dated April 19, 2013 from Dr. Neil Allen, a Board-certified internist and
neurologist. Dr. Allen found that appellant had four percent permanent impairment of each
lower extremity due to Raynaud’s disease.
By decision dated October 21, 2013, OWCP denied appellant’s schedule award claim. It
found that Dr. Allen’s opinion was insufficient to support a schedule award as he rated her for a
vascular condition which had not been accepted as employment related.
On April 26, 2014 appellant filed a notice of recurrence of disability and of a medical
condition on March 14, 2014 causally related to her accepted employment injury. She stopped
work on March 5, 2014 and returned to work on March 18, 2014.
On May 6, 2014 appellant requested reconsideration of the October 21, 2013 decision.
She resubmitted a June 9, 2010 report from Dr. Bielinski attributing her mild bunion deformity
and bilateral great toe neuritis to Raynaud’s disease. The podiatrist advised that appellant’s
condition was due to her employment and that she needed to limit exposure to extreme
temperature. In a report dated December 13, 2013, Dr. Bielinski requested that OWCP expand
the claim to include Raynaud’s disease.
By decision dated July 29, 2014, OWCP found that appellant had not established a
recurrence of disability beginning March 14, 2014. It determined that she had not submitted
sufficient medical evidence to demonstrate a change in her employment-related condition.
In a decision dated August 8, 2014, OWCP denied modification of its October 21, 2013
decision. It noted that it had denied appellant’s schedule award claim because Dr. Allen rated
3

By decision dated August 19, 2009, OWCP denied appellant’s claim after finding that the medical evidence was
insufficient to show that she sustained a diagnosed condition as a result of the accepted work factors. In a decision
dated December 14, 2009, an OWCP hearing representative vacated the August 19, 2009 decision and remanded the
case for further development of the medical evidence.

2

her for a condition not accepted. OWCP found that the medical evidence was insufficient to
show that it should expand her claim to include additional conditions.
On August 13, 2014 appellant, through a checkmark on an appeal request form, requested
reconsideration of the July 29, 2014 decision. By decision dated September 3, 2014, OWCP
denied her request as she did not submit evidence or raise an argument sufficient to warrant
reopening her case for further review of its finding that she did not establish an employmentrelated recurrence of disability.4
On September 8, 2014 appellant, through a checkmark on an appeal request form,
requested reconsideration of the August 8, 2014 decision. In a decision dated September 22,
2014, OWCP denied her request for reconsideration after finding that she did not raise an
argument or provide evidence to show that it should reopen her claim for further merit review of
its denial of her schedule award claim.
On appeal appellant questions why her case is now closed when her condition is
unchanged and she is submitting the same evidence from her physician.
LEGAL PRECEDENT -- ISSUES 1 & 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that 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 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does

4

OWCP initially issued a decision dated August 26, 2014 denying appellant’s request for reconsideration of its
August 8, 2014 decision. It subsequently issued an amended decision on September 3, 2014 properly addressing her
request for reconsideration of its July 29, 2014 decision.
5

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

3

not constitute a basis for reopening a case.10 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.11
ANALYSIS -- ISSUES 1 & 2
On August 13, 2014 appellant requested reconsideration of OWCP’s July 29, 2014
decision finding that she had not established an employment-related recurrence of disability. By
decision dated September 3, 2014, OWCP denied her request to reopen her case for further merit
review. On September 8, 2014 appellant requested reconsideration of an August 8, 2014
decision denying her claim for a schedule award. In a decision dated September 22, 2014,
OWCP denied her request for further merit review of its denial of her schedule award claim.
Both appellant’s August 13 and September 8, 2014 requests for reconsideration are timely as
they were received within one year of the July 29 and September 3, 2014 decisions. The
question for determination is whether appellant’s requests met at least one of the three standards
for obtaining merit review.
Appellant’s August 13 and September 8, 2014 reconsideration requests consisted only of
a mark on an appeal request form indicating that she wanted reconsideration. She did not offer
any argument or evidence in support of her requests. The requests 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 provide relevant and pertinent new evidence not previously
considered by OWCP. Such bare requests are insufficient, on their face, to warrant a reopening
of appellant’s case.12
As appellant’s reconsideration requests did not meet any of the standards for reopening
her case, the Board finds that OWCP properly denied her August 13 and September 8, 2014
requests for further merit review under section 8128.
On appeal appellant questions why her case is closed given that she provided the same
evidence from her physicians. As noted, the Board only has jurisdiction over OWCP’s
September 3 and 22, 2014 nonmerit decisions and therefore is precluded from reviewing the
merits of her case.
CONCLUSION
The Board finds that OWCP, in its September 3 and 22, 2014 decisions, properly denied
appellant’s requests to reopen her case for further merit review under section 8128.

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
11

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

12

See L.B., Docket No. 14-2064 (issued February 3, 2015); J.A., Docket No. 14-1447 (issued October 21, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the September 22 and 3, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 21, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIAL COMMAND, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 08-1395
Issued: December 3, 2008

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant timely appealed the March 20, 2008 merit decision of the
Office of Workers’ Compensation Programs denying a schedule award for employment-related
hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the schedule award.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On September 19, 2007 appellant, then a 51-year-old sheet metal mechanic leader, filed
an occupational disease claim alleging that he sustained hearing loss due to factors of his
employment. He submitted information pertaining to his employment history as well as copies
of his health record from the employing establishment, which contained audiograms from 1989

to 2007. Appellant was noted to be enrolled in the Hearing Conservation Program and exposed
to noise from rivet guns and high speed grinders. An August 24, 2007 audiological evaluation at
the Brooke Army Medical Center revealed that he had bilateral sensorineural hearing loss.
On January 29, 2008 the Office scheduled appellant for an audiologic and otologic
evaluation with Dr. Paul W. Loeffler, Board-certified in otolaryngology. An audiogram was
completed on February 19, 2008, which reflected testing at frequency levels including those of
500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed decibel losses on the left of
25, 20, 25 and 30, respectively and on the right of 25, 25, 25 and 25. Dr. Loeffler diagnosed
tinnitus with bilateral neurosensory hearing loss. He opined that the hearing loss was due to
appellant’s exposure to high noise levels encountered in his federal employment. Dr. Loeffler
advised that appellant was to have annual audiograms and should wear hearing protection all the
time both at home and at work.
On March 6, 2008 an Office medical adviser reviewed the February 19, 2008 audiogram
results and used them to calculate appellant’s impairment rating finding that he had a
zero percent impairment and therefore did not have a ratable hearing loss. The Office medical
adviser additionally did not recommend hearing aids.
By decision dated March 20, 2008, the Office accepted appellant’s claim for binaural
noise-induced hearing loss but found that appellant was not entitled to a schedule award. It
found that the February 19, 2008 audiogram provided by Dr. Loeffler and verified by the Office
medical adviser did not result in a ratable hearing loss in either ear. The Office also denied
additional medical benefits as the medical evidence did not support that appellant would benefit
from hearing aids at the present.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act 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.1 The Act, 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. The implementing regulation have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) as
the appropriate standard for evaluating schedule losses.2 Effective February 1, 2001, schedule
awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).3

1

The Act provides that for complete, or 100 percent loss of hearing in one ear, an employee shall receive
52 weeks compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks
compensation. 5 U.S.C. § 8107(c)(13) (2000).
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2

Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.8
ANALYSIS
The Office medical adviser applied the Office’s standard procedures, detailed above, to
the February 19, 2008 audiogram performed on Dr. Loeffler’s behalf. Testing for the left ear at
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 25, 20, 25 and 30,
respectively. These decibel losses were totaled at 100 and divided by 4 to obtain the average
hearing loss per cycle of 25. The average of 25 was then reduced by the 25 decibel fence (the
first 25 decibels are discounted as discussed above) to equal 0 decibels for the left ear. The
0 was multiplied by the 1.5 resulting in a 0 percent loss for the left ear. Testing for the right ear
at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 25, 25, 25 and
25, respectively. These decibel losses were totaled at 100 and divided by 4 to obtain the average
hearing loss per cycle of 25. The average of 25 was then reduced by the 25 decibel fence to
equal 0 decibels for the right ear. The 0 was multiplied by 1.5 resulting in a 0 percent loss for
the right ear. The Office medical adviser properly found that appellant did not have a ratable
hearing loss in either ear under the A.M.A., Guides. The Board finds that the Office medical
adviser applied the proper standards to the February 19, 2008 audiogram. The result is a
nonratable hearing loss.
The medical evidence of record further supports that appellant is not entitled to any
additional medical benefits at this time. The Office’s procedure manual provides that hearing
aids will be authorized when hearing loss has resulted from an accepted injury or disease if the
attending physician so recommends.9
In his February 19, 2008 report, Dr. Loeffler
4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(2)
(October 1995).

3

recommended that appellant have annual audiograms. He did not recommend hearing aids. The
Office medical adviser also did not recommend hearing aids. Thus, the Board finds that the
Office properly declined to authorize hearing aids. On appeal, appellant argued that his hearing
loss will probably worsen in the future. The Board has long recognized that, if a claimant’s
employment-related hearing loss worsens in the future, he may apply for an additional schedule
award for any increased permanent impairment.10
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award. Furthermore, the medical record supports appellant is not entitled
to any additional medical benefits at this time.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Paul Fierstein, 51 ECAB 381 (2000); Paul R. Reedy, 45 ECAB 488 (1994).

4


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

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

Docket No. 09-1913
Issued: March 10, 2010

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 July 21, 2009 appellant filed a timely appeal from a June 23, 2009 merit decision of
the Office of Workers’ Compensation Programs. Under 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 sustained a right ankle injury on April 28, 2009, as alleged.
FACTUAL HISTORY
Appellant, a 48-year-old letter carrier, filed a claim on April 30, 2009, alleging that she
injured her right ankle on April 28, 2009.
In an April 28, 2009 report, Dr. Diana Drown, a chiropractor, stated that appellant was
examined that date and could return to work on May 5, 2009. She noted that physical
restrictions, if any, were pending due to medical issues.

In a report dated May 5, 2009, Dr. John R. Benziger, Board-certified in pathological
medicine, stated that appellant had dermatofibroma; i.e., a skin lesion on her left arm and left leg.
He indicated that he excised both of the lesions.1
In an April 28, 2009 x-ray report, received by the Office on May 29, 2009, Dr. Seth M.
Hardy, a specialist in internal medicine, indicated that Dr. Drown referred appellant for x-ray
examination due to right ankle joint pain. He obtained three views of her right ankle that showed
effusion and a large plantar spur, with normal mortise and talar dome. Dr. Hardy advised that
there could be a small avulsion of the lateral malleolus.
In a report dated May 8, 2009, received by the Office on June 3, 2009, Dr. Drown stated
that appellant was examined that day and could return to work on May 11, 2009 without
restrictions.
On May 21, 2009 the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive medical report from a treating physician describing her symptoms
and the medical reasons for her condition. The Office requested an opinion as to whether her
claimed condition was causally related to her federal employment. It asked that appellant submit
the additional evidence within 30 days. Appellant did not respond.
By decision dated June 23, 2009, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence to establish that she sustained a right ankle injury on
April 28, 2009.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that 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.3 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
1

The Office also received a May 4, 2009 report from Maureen Rosenberg, a physician’s assistant, who assisted
Dr. Benziger with the examination and skin lesion excision procedures.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

2

experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between 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.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
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 his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Office accepted that appellant walked on a stretch of pavement on April 28, 2009
while performing her duties as a letter carrier. The question of whether an employment incident
caused a personal injury can only be established by probative medical evidence.10 Appellant has
not submitted sufficient, probative medical evidence to establish that the April 28, 2009
employment incident caused the claimed ankle injury.
The reports of Dr. Drown, a chiropractor, do not constitute medical evidence pursuant to
section 8101(2) of the Act. They do not contain a diagnosis of spinal subluxation as shown by
x-ray.11 Dr. Hardy’s April 28, 2009 report stated findings on examination and indicated that
appellant had right ankle effusion, a large plantar spur and a possible small avulsion of the lateral
malleolusa. He did not relate these diagnoses to the April 28, 2009 incident at work. The weight
5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

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

9

Id.

10

Carlone, supra note 5.

11

5 U.S.C. § 8101(2): “The term ‘physician’ includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.” The Board notes that evaluation of an ankle is beyond the scope of expertise of a
chiropractor under the Act.

3

of medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts of the case, the medical
history provided, the care of analysis manifested and the medical rationale expressed in support
of stated conclusions.12 Dr. Benziger’s May 5, 2009 report indicated that appellant was treated
for skin lesions. His report has no relevance to appellant’s claim for a right ankle injury. The
medical reports of record do not explain how appellant sustained a right ankle injury while
walking during her employment on April 28, 2009. There is insufficient rationalized evidence of
record to establish her right ankle injury as work related. The report from the physician’s
assistant has no probative value. As a physician’s assistant is not a physician as defined under
section 8101 of the Act.13 The Board finds that appellant failed to submit a medical report from a
physician that explains how the work incident of April 28, 2009 caused or contributed to the
claimed right ankle injury.
The Office properly denied appellant’s claim for compensation.14
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right ankle
injury on April 18, 2009.

12

See Anna C. Leanza, 48 ECAB 115 (1996).

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

The Board notes that appellant submitted additional evidence to the record following the June 23, 2009 Office
decision. The Board’s jurisdiction is limited to a review of evidence, which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

4

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 10, 2010
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

5


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

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

Docket No. 17-1456
Issued: December 11, 2017

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 June 19, 2017 appellant filed a timely appeal from a February 24, 2017 decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of a medical condition on
December 12, 2014 causally related to the accepted employment injury.
FACTUAL HISTORY
On November 1, 2001 appellant, then a 49-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained severe arthritis of her left
shoulder a result of factors of her federal employment. A supervisor noted that appellant had
1

5 U.S.C. § 8101 et seq.

retired on July 30, 2001. After initial denial of the claim on July 8, 2003, and subsequent further
development of the evidence, OWCP accepted the claim on April 20, 2006 for bilateral
sprain/strain of the rotator cuff and bilateral rotator cuff syndrome of the shoulder.
The evidence of record documents that appellant received physical therapy through
December 12, 2006. The record also indicates that appellant was seen by Dr. Thaddeus W.
Hume, a Board-certified orthopedic surgeon, on September 4, 2008. However, the progress note
is illegible.
On December 12, 2014 appellant claimed a recurrence of medical condition (Form
CA-2a). She did not indicate a date of recurrence. A supervisor indicated that the claimed date
of recurrence was unknown, and that the supervisor was unsure why appellant was filing a
recurrence claim.
On February 12, 2015 OWCP received a report dated September 26, 2014 from
Dr. Phong H. Nguyen, Board-certified in family practice, who was appellant’s treating physician.
He related that he had examined appellant and found that she continued to have bilateral
shoulder and knee pain. Only the first page of this report was submitted to OWCP.
By letter dated April 2, 2015, OWCP informed appellant that she had not submitted
sufficient evidence to establish a recurrence. It noted that the only evidence received in support
of her recurrence was the September 26, 2014 report of Dr. Nguyen. OWCP informed appellant
of the evidence required to establish a recurrence and afforded her 30 days to submit additional
medical evidence, as well as to respond to OWCP’s inquiries. Appellant did not respond.
By decision dated May 15, 2015, OWCP denied appellant’s claim for a recurrence of
medical condition. It found that appellant did not submit sufficient medical evidence and did not
respond to OWCP’s inquiries.
On August 21, 2015 appellant requested reconsideration of OWCP’s May 15, 2015
decision. With her request, appellant attached a narrative statement, stating that her gap in
medical treatment for her shoulders was due to a misunderstanding. She also replied to OWCP’s
inquiries, noting that her shoulder conditions were ongoing. Appellant stated that there had been
a significant gap in treatment because she had been taking medications for her conditions.
By decision dated August 31, 2015, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior claim. It found that appellant had not submitted any additional
medical evidence on reconsideration, and that her claim remained closed for medical care.
On February 9, 2016 appellant requested reconsideration of OWCP’s August 31, 2015
decision. With her request, she submitted a report dated November 6, 2015 from Dr. Donald
Dean Dominy III, a Board-certified orthopedic surgeon. He diagnosed bilateral shoulder
osteoarthritis and recommended total shoulder replacement.
By decision dated February 25, 2016, OWCP reviewed the merits of appellant’s claim,
but denied modification of its prior decision. It noted that appellant’s claim was not accepted for
osteoarthritis and that Dr. Dominy had not provided an opinion as to how this degenerative
condition was related to the accepted work-related conditions.
2

On November 18, 2016 appellant again requested reconsideration. With her request, she
resubmitted a report dated August 2, 2005 from Dr. Nguyen. She also submitted a narrative
statement noting that she had visited physicians for her condition as far back as 1992, and that
she was never released from medical care.
In the August 2, 2005 report, Dr. Nguyen diagnosed tendinitis and grade 1 rotator cuff
tear. He opined that these conditions were caused by appellant’s repetitive motions of the arms,
shoulders, and by heavy lifting required by her federal employment.
By decision dated February 24, 2017, OWCP reviewed the merits of appellant’s claim,
but denied modification of its prior decision. It found that she had submitted new factual
information not previously considered, but that appellant had not submitted any new medical
evidence in support of her claim for recurrence.
LEGAL PRECEDENT
FECA provides that the United States shall furnish to an employee who is injured while
in the performance of duty the services, appliances, and supplies prescribed or recommended by
a qualified physician that the Secretary of Labor considers likely to cure, give relief, reduce the
degree or the period of any disability, or aid in lessening the amount of any monthly
compensation.2
Recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not
considered a need for further medical treatment after release from treatment, nor is an
examination without treatment.3
If a claim for recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden of proof.4
An employee has the burden of proof to establish a recurrence of a medical condition that
is causally related to an accepted employment injury. To meet this burden, the employee must
submit medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, supports that the condition is causally related and supports the conclusion
with sound medical rationale.5

2

5 U.S.C. § 8103(a).

3

20 C.F.R. § 10.5(y).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
5

See K.T., Docket No. 15-1758 (issued May 24, 2016).

3

ANALYSIS
The Board finds that appellant has not established a recurrence of a medical condition on
December 12, 2014 causally related to her accepted employment injury.
OWCP accepted that appellant sustained bilateral sprain/strain of the rotator cuff and
bilateral rotator cuff syndrome of the shoulder in the performance of duty in 2001. The record
indicates that appellant has not worked since July 30, 2001. On December 12, 2014 appellant
claimed a recurrence of medical condition. She did not indicate a date of recurrence. OWCP
denied her recurrence claim in decisions dated May 15 and August 31, 2015; March 16, 2016;
and February 24, 2017.
In a report dated August 2, 2005, Dr. Nguyen diagnosed tendinitis and a grade 1 rotator
cuff tear. He opined that these conditions were caused by repetitive motions of the arms,
shoulders, and by heavy lifting, related to appellant’s federal employment. In a report dated
September 26, 2014, Dr. Nguyen examined her and noted that she continued to have bilateral
shoulder and knee pain. As for Dr. Nguyen’s assessment of pain in the report of September 26,
2014, the Board has held that an assessment of “pain” is a symptom, not a compensable medical
diagnosis.6 Regarding the resubmission of Dr. Nguyen’s August 2, 2005 report, that report is not
contemporaneous with appellant’s claim for recurrence and has no probative value as to her
claim for recurrence.7 As such, these reports from Dr. Nguyen are insufficient to establish
appellant’s claim for recurrence of medical treatment.
On November 6, 2015 Dr. Dominy diagnosed bilateral shoulder osteoarthritis and
recommended total shoulder replacement. The Board notes that OWCP has not accepted
appellant’s claim for osteoarthritis. For conditions not accepted by OWCP as being employment
related, it is the employee’s burden of proof to provide rationalized medical evidence sufficient
to establish causal relation, not OWCP’s burden to disprove such relationship.8 Dr. Dominy did
not offer any opinion or medical rationale causally relating the diagnosis of bilateral shoulder
osteoarthritis to appellant’s accepted employment injuries. His report is therefore insufficient to
establish appellant’s claim for recurrence of a medical condition.
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 failed to meet her burden of proof to establish a
recurrence of a medical condition on December 12, 2014 related to her accepted employment
injury.
6

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

7

See M.B., Docket No. 16-0077 (issued June 1, 2016); see also A.P., Docket No. 14-1409 (issued June 17, 2015).

8

T.M., Docket No. 16-1456 (issued January 10, 2017); E.C., Docket No. 10-1554 (issued April 1, 2011); Alice J.
Tysinger, 51 ECAB 638 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2017
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

5