United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________

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Appearances:
Gerard Siciliano, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1714
Issued: April 1, 2019

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 September 11, 2018 appellant, through counsel, filed a timely appeal from a July 31,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from the last merit decision, dated August 7, 2017, to the filing of this

1

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

The Board notes that appellant submitted additional evidence on appeal and that following the July 31, 2018
decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R.
§ 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 15, 2017 appellant, then a 59-year-old boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he sustained hearing loss and tinnitus causally related to
factors of his federal employment. He noted that he first became aware of his condition on May 15,
2004 and attributed it to factors of his federal employment on June 1, 2005. Appellant did not stop
work.
In a statement dated February 8, 2017, appellant related that he was exposed to noise from
air tools, welding, rigging, and working around boilers beginning in 1978. He also “had to shoot
boiler clinkers using a[n] eight gauge shot gun” for around six hours a day for two days at a time.
From August 2000, appellant had been exposed to noise from air tools, hand tools, and pulverizers,
and shooting “clinkers from the boiler using [an eight] gauge shot gun….” He described in detail
his employment history, his work for contractors in 1997, and his use of hearing protection.
Appellant noted that, as of September 15, 2015, his work location was no longer operational and
that he now worked around pumps and other equipment only two to four hours per day.
The employing establishment, on February 13, 2017, advised that appellant was exposed
to noise from pulverizers, boilers, pumps, and pneumatic tools. It indicated that his statements
regarding his job duties and the equipment providing his exposure was accurate. The employing
establishment indicated that appellant was exposed to around 85 decibels for five to six hours per
day and that he wore hearing protection. It indicated that the plant had stopped operating in
September 2015.
OWCP, on April 13, 2017, referred appellant to Dr. Joseph A. Motto, a Board-certified
otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted facts
(SOAF), which indicated that he was exposed to noise from turbines, boiler feed pumps, and steam
leaks.
In a report dated May 17, 2017, Dr. Motto reviewed the results of audiometric testing and
diagnosed severe high frequency sensorineural hearing loss beginning at 2,000 hertz (Hz). He
opined that appellant’s hearing loss had not resulted from noise exposure during the course of his
federal employment. Dr. Motto advised that the demonstrated hearing loss suggested hypertension
as a cause.
Dr. Motto, in a supplemental report dated July 17, 2017, advised that noise-induced hearing
loss could be viewed as either the amount of hearing loss that occurred during employment or the
3

5 U.S.C. § 8101 et seq.

2

amount that exceeded normal hearing loss. He related that the fact that appellant “used to shoot
guns” and was right handed explained the asymmetry in his hearing loss at 2,000 Hz. Dr. Motto
advised that hearing loss resulting from noise exposure normally showed improvement above
8,000 Hz, which was not demonstrated in this case. He concluded that appellant’s hearing loss
had not resulted from noise exposure.
By decision dated August 7, 2017, OWCP denied appellant’s occupational disease claim.
It found that Dr. Motto’s opinion constituted the weight of the evidence and established that
appellant’s hearing loss was unrelated to the accepted factors of his federal employment.
On July 2, 2018 appellant, through counsel, requested reconsideration. He contended that
Dr. Motto’s brief report referenced that he shot guns, but without demonstrating an awareness that
the shot guns had been provided by the employing establishment as a part of his work duties.
Counsel asserted that an enclosed June 11, 2018 evaluation from Dr. David S. Fortune, a Boardcertified otolaryngologist, established that appellant sustained a ratable bilateral hearing loss and
tinnitus causally related to factors of his federal employment. He also contended that an
October 12, 2017 statement from appellant demonstrated that he had no significant noise exposure
other than using shotguns during the course of his employment.
By decision dated July 31, 2018, OWCP denied appellant’s request for reconsideration as
he had not raised an argument or submitted evidence sufficient to warrant reopening his case for
further merit review under section 8128(a). It noted that, while counsel had referenced an attached
report from Dr. Fortune, he had not submitted additional evidence in support of his reconsideration
request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.5
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.6 If OWCP chooses to grant reconsideration, it
4

Id. at § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

6

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

3

reopens and reviews the case on its merits.7 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration counsel asserted that Dr. Motto, in evaluating appellant’s hearing loss,
referred to his shooting guns without explaining whether he had engaged in this activity as part of
his federal employment duties. Appellant maintained that he had used an eight gauge shotgun to
shoot boiler clinkers in the course of his employment. The employing establishment did not
specifically address the accuracy of this aspect of his work duties and it is not set forth in the
SOAF.
Reopening a claim for merit review does not require a claimant to submit all evidence that
may be necessary to discharge his burden of proof.9 If OWCP should determine that the new
evidence submitted lacks probative value, it may deny modification of the prior decision, but only
after it has reviewed the case on the merits.10
The Board finds that appellant has advanced a legal argument that is relevant, not
previously considered, and pertinent to the issue of whether he has established hearing loss
causally related to factors of his federal employment. OWCP did not address Dr. Motto’s finding
that appellant’s asymmetrical hearing loss was related to shooting guns or make a specific finding
regarding whether his use of guns occurred in the course of his federal employment. Appellant is,
thus, entitled to a review of the merits of his claim under section 10.606(b)(3)(ii) of OWCP’s
regulations.11 The case will be remanded to OWCP to conduct a merit review of the claim,
followed by an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

7

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

8

Id. at § 10.608(b); A.C., Docket No. 17-1616 (issued November 27, 2018).

9

See K.S., Docket No. 18-1022 (issued October 24, 2018).

10

Id.

11

J.W., Docket No. 14-0825 (issued September 4, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: April 1, 2019
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 10-1142
Issued: December 15, 2010

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 March 19, 2010 appellant filed a timely appeal from a September 21, 2009 decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits
of the case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).2
1

The last merit decision was the May 26, 2009 decision of the Office denying appellant’s claim for recurrence.
For final adverse Office decisions issued on and after November 19, 2008, a claimant has 180 days to file an appeal.
20 C.F.R. § 501.3(e). Appellant’s appeal was untimely filed from the May 26, 2009 decision as more than 180 days
passed between appellant’s March 19, 2010 appeal and the issuance of this decision.
2

On appeal, appellant submitted new medical evidence. The Board’s jurisdiction is limited to the evidence that
was before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). The Board may not
consider this evidence for the first time on appeal.

FACTUAL HISTORY
On November 12, 2003 appellant, then a 52-year-old clerk, filed a traumatic injury claim
alleging that on that date she was struck by a door while leaving the building, thereby sustaining
a knot on the right side of her head and a swollen right wrist and hand. On January 21, 2004 the
Office accepted her claim for postconcussion syndrome with headaches and intermittent
dizziness. It paid medical benefits and wage-loss compensation. By decision dated March 18,
2008, the Office denied appellant’s claim for a schedule award and on May 7, 2008 it denied her
request for reconsideration.
On April 3, 2009 appellant filed a claim alleging a recurrence of the November 12, 2003
employment injury on February 21, 2009. She noted that she still had neck and shoulder pain,
headaches, dizziness and issues with balance. In support thereof, appellant submitted medical
evidence, including a May 12, 2009 report by Dr. Lolita Smith, an internist, wherein she noted
that appellant told her about her work-related injury on November 12, 2003. Dr. Smith noted
that appellant had recurrent complaints of headache, hand numbness, pain in both elbows and
bilateral decreased hand grip. She noted that appellant’s recent magnetic resonance imaging
(MRI) scan was consistent with herniated cervical disc with radiculopathy. Dr. Smith noted that
this type of progression can be seen in appellants with “this type of injury history.”
By decision dated May 26, 2009, the Office denied appellant’s claim for a recurrence.
On August 24, 2009 appellant requested reconsideration. She did not submit any new
evidence with her request.
On September 21, 2009 the Office denied appellant’s request for reconsideration without
conducting a merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file her application for review within one year of the
date of that decision.5 When a claimant fails to meet one of the above standards, the Office will
deny the application for reconsideration without reopening the case for review on the merits.6
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

2

ANALYSIS
The Office accepted that appellant sustained postconcussion syndrome with headaches
and intermittent dizziness in a November 12, 2003 employment injury. Appellant claimed that
she sustained a recurrence of this accepted injury on February 21, 2009. The Office denied her
claim for a recurrence in its May 26, 2009 decision. However, as appellant’s appeal was filed
more than 180 days after the issuance of this decision, the Board does not have jurisdiction to
review the merits of this case.7 The only issue in this case is whether the Office properly denied
appellant’s request for reconsideration.
Appellant did not make any new arguments that the Office erroneously applied or
interpreted a specific point of law nor did she advance a relevant legal argument not previously
considered by the Office. Furthermore, she did not submit any pertinent new and relevant
evidence with her request for reconsideration. Accordingly, the Board finds that appellant did
not meet any of the standards of 20 C.F.R. § 10.606(b)(2). Therefore, the Office properly denied
the application for reconsideration without review of the merits of the claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim under 5 U.S.C. § 8128(a).

7

See supra note 1.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2009 is affirmed.
Issued: December 15, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 09-2195
Issued: August 16, 2010

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 August 31, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated April 23 and July 6, 2009. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained a back injury in
the performance of duty on February 21, 2009; and (2) whether the refusal of the Office to
reopen appellant’s case for further consideration of the merits constituted an abuse of discretion.
FACTUAL HISTORY
Appellant, a 44-year-old letter carrier, filed a Form CA-1 claim for benefits on
February 25, 2009, alleging that she strained her back and stomach as a result of a physical
altercation with Coworker Donna Vargas on February 21, 2009. On the form the employing
establishment controverted the claim. It contended that appellant falsely claimed that her injury
occurred when Ms. Vargas pushed her.

In a February 21, 2009 statement, appellant stated that the incident occurred when
Ms. Vargas walked over to the equipment bin carrying various trays. She was standing next to
an orange gurney holding two or three trays when Ms. Vargas began yelling at her, demanding
that she give back “her” trays. Appellant stated that she turned around and Ms. Vargas charged
at her “quickly and aggressively,” leaving her with no time to respond. She asserted that
Ms. Vargas’ violent pulling and shoving the trays into her abdomen caused her to fall backwards
onto the orange gurney’s hard surface, resulting in injuries to her back and abdomen.
In a statement dated February 21, 2009, Ms. Vargas challenged appellant’s account of the
February 21, 2009 incident. She stated that appellant entered her work area on February 20,
2009 and took a stack of trays without asking her. When Ms. Vargas asked appellant to return
the trays, appellant left the work area without responding. The following day, February 21,
2009, appellant again entered Ms. Vargas’ work area and took a stack of trays without asking.
Ms. Vargas asserted that when she asked appellant to return the trays appellant responded that
they were not her trays, that they were for everyone’s use. She objected, stating that the trays
were “hers” because they were in her setup. Ms. Vargas stated that when she went over to grab
the trays from appellant’s cart appellant grabbed them on the side at the same time and pulled
two of them out of her hands. She stated that she never physically touched appellant.
In a February 21, 2009 routing slip, Jennifer Hufford, the station manager, stated that
appellant walked into her office on February 21, 2009 and asserted that Ms. Vargas had snatched
some trays out of her hand. Appellant then left the office, as Ms. Hufford told her that she would
need to submit documentation that she was incapacitated to work that day.
Appellant submitted a report dated February 21, 2009 from Dr. Traci N. Watkins, a
Board-certified family practitioner, who stated that appellant had a history of degenerative joint
disease, arthritis and chronic back pain, which was exacerbated by an incident at work.
Dr. Watkins related that appellant stated that she was approached by a clerk while she had mail
trays in her hand, when the coworker pushed her and pulled the mail trays, causing her to
exacerbate her back condition; appellant alleged that the coworker essentially assaulted her with
the mail trays, pushing her into the orange gurney. On examination, she noted localized
tenderness over her posterior thoracic and lumbar back muscles. Dr. Watkins stated that
appellant was ambulatory to the room without any problems and had no neurovascular or motor
deficit in her lower extremities. She released appellant in stable condition.
In a February 23, 2009 report, Dr. Jay Nielsen, Board-certified in family practice, stated:
“[Appellant] reports that she was pushed while on duty on Saturday,
February 21, 2009. [She] is requesting to be off work until her next appointment
with me on March 3, 2009. [Appellant] is complaining of physical as well as
emotional issues.”
In a March 9, 2009 statement, appellant’s supervisor, Shirley Hamer, controverted the
claim. She stated that statements from the stationmaster and appellant’s coworkers did not
substantiate appellant’s allegation that she was a victim of violence perpetuated by Ms. Vargas.

2

In a February 23, 2009 statement, received by the Office on March 16, 2009, appellant’s
coworker Rick Pinardo stated that he witnessed the February 21, 2009 altercation between
appellant and Ms. Vargas. Mr. Pinardo indicated that there had been a similar confrontation
between these employees on February 20, 2009, when appellant grabbed a stack of trays and
Ms. Vargas asked her not to take all the trays because the clerks needed some of them. He stated
that on February 21, 2009 appellant went back to the case area and proceeded to take the stack of
trays again. Mr. Pinardo related that he heard some yelling regarding her taking all the trays,
then she stormed off, became upset and left for the day; he stated, however, that there was no
evidence of violence whatsoever.
By letter dated March 19, 2009, the Office advised appellant that she needed to submit
additional factual and medical evidence in support of her claim. It stated that although the
evidence indicated that an incident occurred between appellant and Ms. Vargas, there were some
discrepancies with respect to what actually occurred. The Office accepted that appellant and her
coworker grabbed onto the trays and struggled to keep hold of them. However, it advised
appellant that in order to establish that the injury occurred as alleged; i.e., that Ms. Vargas
charged at her and violently pulled and shoved the trays, causing appellant to fall backwards into a
gurney, she was required to submit corroborative evidence, such as signed witness statements, to
support that the incident occurred as alleged.
The Office further stated that there was insufficient medical evidence to establish that
appellant sustained a medical condition in connection with the alleged work incident. It asked her
to submit a comprehensive medical report from her treating physician describing her symptoms
and the medical reasons for her condition and an opinion as to whether her claimed condition
was causally related to her federal employment and a diagnosis of her claimed condition. The
Office stated that appellant had 30 days to submit the requested information.
In a March 20, 2009 report, Dr. Nielsen stated:
“[Appellant] reports that she was assaulted while on duty Saturday,
February 21, 2009. This incident caused an aggravation of prior work-related
injuries. By my request she is to be off work until results are obtained from
diagnostic tests ordered by Dr. Kevin Koffel, (Board-certified in internal
medicine) on Tuesday, March 17, 2009. [Appellant] will be totally unable to
perform any work duties at this time. She is complaining of physical as well as
emotional issues at this time.”
In a March 27, 2009 investigative report, the employing establishment concluded on the
basis of its internal investigation that Ms. Vargas had never touched appellant and that appellant
had never fallen back into a gurney on February 21, 2009, as she had alleged. It stated that it had
interviewed appellant, Ms. Vargas and Ms. Hufford in addition to several other coworkers on
March 5, 2009. The report indicated that none of these other employees had substantiated
appellant’s account of the February 21, 2009 incident. In a March 5, 2009 interview, Ms. Vargas
stated that at no time did appellant appear to have fallen or knocked into anything during the
incident. The report indicated that several other employees overheard the argument between
appellant and Ms. Vargas; other than Mr. Pinardo, however, there were no other employees who
stated that they actually witnessed the incident. In his March 5, 2009 investigation interview,

3

Mr. Pinardo reiterated that he witnessed a verbal altercation between appellant and Ms. Vargas
on February 21, 2009 but did not observe any violence. He again omitted to mention, however,
that the two employees were both grabbing the trays at the same time and were engaged in a
physical struggle to gain control of them.
In an April 9, 2009 report, Dr. Nielsen stated that he was treating appellant and that she
needed to be excused from her work from February 21, 2009 until she was seen and treated by
Dr. Koffel on April 24, 2009. He advised that this was due to the work injury she sustained on
February 21, 2009.
By decision dated April 23, 2009, the Office denied appellant’s claim, finding that she
failed to establish fact of injury. It accepted that the February 21, 2009 incident had occurred.
However, the Office found that appellant’s assertion that Ms. Vargas pushed her and that she fell
back into a gurney, striking a gurney, was contradicted by the evidence of record. It, therefore,
found that the incident did not occur in the manner in which appellant alleged.
In an April 13, 2009 report, received by the Office on April 27, 2009, Dr. Nielsen
diagnosed substantial aggravation of preexisting L5-S1 lumbar disc with sacroiliac strain, left
ankle sprain and new contusion to thoracic spine posterior. He noted that he had read an account
of the February 21, 2009 work incident and had concluded that his diagnosis was causally related
to or aggravated by incident based on history, examination, radiographic studies, endoscopy and
response to therapy. Dr. Nielsen indicated that appellant was totally disabled from work as of
February 21, 2009 and continuing.
On May 8, 2009 appellant requested reconsideration.
In a report dated May 21, 2009, Dr. Nielsen reiterated the diagnoses of substantial
aggravation of preexisting L5-S1 lumbar disc with sacroiliac strain, left ankle sprain and new
contusion to thoracic spine posterior. He also reiterated his opinion that these diagnoses were
causally related to the February 21, 2009 work incident based on appellant’s description.
Dr. Nielsen stated:
“It is my medical opinion that the diagnosis was caused by the coworker allegedly
assaulting [appellant] by wrestling, struggling, shoving, pushing, trays into her
abdomen causing her to further hurt already hurt back onto the hard surface of
Route 1 orange gurney. Allegedly, the coworker was violently pulling, pushing,
shoving, wrestled and struggled the plastic trays away from [appellant] causing
her to fall back onto the hard surface of the gurney[. I]t is my medical diagnosis
the actions of the coworker caused these injuries.”
Dr. Nielsen reiterated that appellant was on total disability as of February 21, 2009 and
continuing.
By decision dated July 6, 2009, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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.2 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.3
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 experienced
the employment incident at the time, place and in the manner alleged.4 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.5
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty.6 Nor can the
Office find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in
order to establish the fact that an employee sustained an injury in the performance of duty, as
alleged, but the employee’s statements must be consistent with surrounding facts and
circumstances and her subsequent course of action.7 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury and failure to obtain medical treatment may case doubt on an employee’s
statements in determining whether he or she has established his or her claim.8

1

5 U.S.C. § 8101 et seq.

2

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

3

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

4

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

5

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

6

Pendleton, supra note 2.

7

See Joseph H. Surgener, 42 ECAB 541, 547 (1991); see also Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
8

See Constance G. Patterson, 41 ECAB 206 (1989).

5

ANALYSIS -- ISSUE 1
In the present case, the Office found that the record contained conflicting and inconsistent
evidence regarding whether the claimed event occurred at the time, place and in the manner
alleged. It noted that although appellant stated on her CA-1 form and in her February 21, 2007
statement that she injured her back on February 21, 2009 when she engaged in a physical struggle
with Ms. Vargas and fell backward into a gurney, her assertion that she fell and struck the gurney
was not corroborated by either Ms. Vargas or Mr. Pinardo, the only witness to the altercation. The
Office concluded that appellant did not establish that she sustained the injury in the performance of
duty on February 21, 2009. The Board finds, however, that she presented sufficient evidence to
establish that an injury occurred at the time, place and in the manner alleged.9
As stated above, the Board has held that an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.10 Appellant’s statement that she experienced back pain
on February 21, 2009 when she and Ms. Vargas grabbed the mail trays at the same time and
engaged in a struggle to gain control of them was not contradicted by any documentary evidence in
the record. Ms. Hufford, appellant’s branch manager, stated in her February 21, 2009 routing slip
and in her March 5, 2009 investigative interview that appellant walked into her office on
February 21, 2009 and asserted that Ms. Vargas had snatched some trays out of her hand. In
addition, appellant sought medical attention from Dr. Watkins on February 21, 2009, the date she
engaged in a physical struggle with Ms. Vargas. Dr. Watkins stated that she examined appellant in
the emergency room on February 21, 2009, at which time appellant complained of low back pain
and displayed tenderness in her lower back and that appellant told her she injured her back that day
as a result of an altercation with a coworker. Dr. Nielsen indicated in his February 23, March 20
and April 9, 2009 reports that appellant told him that she had been involved in a physical
altercation with a coworker on February 21, 2009.
The Board finds that the totality of the evidence -- which includes appellant’s
February 21, 2009 statement, her March 5, 2009 investigative interview and her statements to
Drs. Watkins and Nielsen, which indicated that she and Ms. Vargas simultaneously grabbed a
stack of trays and were engaged in a physical struggle to wrest control of them -- is sufficient to
establish that she sustained an injury in the performance of duty on February 21, 2009. The
Office acknowledged that an incident occurred at the workplace between appellant and
Ms. Vargas on February 21, 2009. However, it controverted the claim on the basis that appellant
did not experience the incident in the manner she alleged. In her statements Ms. Vargas admitted
that she yelled at appellant to put down the trays, that she and appellant grabbed the trays at the
same time and that they engaged in a brief struggle to obtain control of them. She asserted,
however, that appellant did not fall backwards and strike the gurney. The only person present
during the confrontation, Mr. Pinardo, stated in both his February 21, 2009 statement and in his
March 5, 2009 investigative interview that the two coworkers argued over the trays and that
Ms. Vargas yelled at appellant but that he saw no violence occurring during the argument. This
omission on the part of Mr. Pinardo to mention that both employees were grabbing the trays at
9

Id.

10

Patterson, supra note 8; Thelma S. Buffington, 34 ECAB 104 (1982).

6

the same time and that there was a physical struggle between appellant and Ms. Vargas over
control of them, as even Ms. Vargas acknowledged, diminishes his credibility. The Board notes
that the record contains no contemporaneous factual evidence contradicting appellant’s account
that a physical struggle occurred between appellant and Ms. Vargas on February 21, 2009.11 In
light of Mr. Pinardo’s failure to mention the physical struggle which occurred during the
February 21, 2009 incident -- and his consequential diminished credibility as a witness -- the
Board is left with the conflicting assertions of Ms. Vargas and appellant as to whether she
actually fell backward on the gurney and struck her back during the altercation. Under the
circumstances of this case, therefore, the Board finds that appellant’s allegations have not been
refuted by sufficiently strong or persuasive evidence. The Board finds that the evidence of
record is sufficient to establish that the incident in which appellant injured her back on
February 21, 2009 occurred at the time, place and in the manner alleged.
The Board finds, however, that appellant failed to submit rationalized medical opinion
evidence to sufficiently describe or explain the medical process by which the claimed February 21,
2009 work accident would have been competent to cause the claimed injuries. In this regard, 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.12
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.13 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
In her February 21, 2009 report, Dr. Watkins indicated that appellant was pushed into a
gurney by a coworker, who pulled mail trays while she was holding them, causing an
exacerbation of her preexisting back condition. She stated on examination that appellant had
localized tenderness over her posterior thoracic and lumbar back muscles. Dr. Watkins stated
that appellant was ambulatory and had no neurovascular or motor deficit in her lower
extremities. Dr. Nielsen indicated in reports dated February 23, March 20 and April 9, 2009, that
appellant was involved in some type of altercation at work on February 21, 2009 which caused
an aggravation of prior work-related injuries. He placed her on total disability and referred her
for diagnostic tests and treatment by Dr. Koffel due to the injuries she sustained from the
February 21, 2009 work incident. Dr. Nielsen advised that appellant was complaining of
physical as well as emotional issues. These reports, however, are not probative with regard to
causal relationship because they do not contain rationalized medical opinion evidence.14 In
11

See Thelma Rogers, 42 ECAB 866 (1991).

12

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

13

Id.

14

Furthermore, the September 20, 2007 Form CA-16 report from Dr. Parnes which supports causal relationship
with a checkmark is insufficient to establish the claim, as the Board has held that without further explanation or
rationale, a checked box is not sufficient to establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore
Dante Roscello, 31 ECAB 247 (1979).

7

addition, Dr. Nielsen failed to present a diagnosis of appellant’s condition causally related to the
February 21, 2009 employment incident. Drs. Watkins and Nielsen did not provide an adequate
medical rationale in support of their conclusions. They did not describe appellant’s accident in
any detail or how the accident would have been competent to cause the claimed back conditions.
Moreover, the opinions of these physicians are of limited probative value for the further reason
that they are generalized in nature and equivocal in that they only noted summarily that
appellant’s conditions were causally related to the February 21, 2009 incident in which she was
struggling with Ms. Vargas to gain possession of a stack of mail trays. The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of 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.15 Appellant failed to provide a rationalized, probative medical opinion relating her
current condition to any factors of her employment. Therefore, she failed to provide a medical
report from a physician that the work incident of February 21, 2009 caused or contributed to the
claimed back injury.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant, therefore, did not provide a medical opinion to
sufficiently describe or explain the medical process through which the February 21, 2009 work
incident would have caused the claimed injuries. Accordingly, as she has failed to submit any
probative medical evidence establishing that she sustained an injury to her back in the
performance of duty, the Office properly denied her claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.16 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.17 When a claimant fails to meet one of the above standards, it is a
matter of discretion on the part of the Office whether to reopen a case for further consideration
under section 8128(a) of the Act.18
ANALYSIS -- ISSUE 2
The Board has duly reviewed the case record and finds that the refusal of the Office to
reopen appellant’s case for further consideration of the merits pursuant to 5 U.S.C. § 8128(a),
constituted an abuse of discretion. In the present case, appellant requested reconsideration of the
Office’s July 6, 2009 decision finding that she did not sustain an injury in the performance of
15

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

16

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

17

Howard A. Williams, 45 ECAB 853 (1994).

18

Joseph W. Baxter, 36 ECAB 228, 231 (1994).

8

duty on February 21, 2009. In support of her request, she submitted the April 13 and May 21,
2009 reports from Dr. Nielsen, who diagnosed substantial aggravation of preexisting L5-S1
lumbar disc with sacroiliac strain, left ankle sprain and new contusion to thoracic spine posterior.
Dr. Nielsen stated that his diagnoses were causally related to the February 21, 2009 work
incident and that appellant was totally disabled from work as of February 21, 2009 and
continuing. In his May 21, 2009 report, he opined that appellant’s diagnosed conditions were
caused by her coworker wrestling, struggling, shoving and pushing trays into her abdomen,
causing her to fall back onto the gurney; he stated that this incident aggravated her preexisting
back conditions. The Board finds that these reports, which indicated that appellant’s
February 21, 2009 work incident; i.e., the altercation with Ms. Vargas, caused an aggravation of
her accepted back conditions, constitutes relevant and pertinent evidence not previously
considered by the Office in regard to the issue of whether appellant sustained an injury in the
performance of duty on February 21, 2009. Therefore, in light of the Board’s finding that
appellant has established fact of injury in this case, the refusal of the Office to reopen her case
for further consideration of the merits of her claim constituted an abuse of discretion.19 The
Board therefore reverses the July 6, 2009 decision and the case is remanded for a review of the
merits of her claim and any other proceedings deemed necessary by the Office, to be followed by
an appropriate decision.
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained injuries to her back in the performance of duty. The Board
finds that the Office abused its discretion by refusing to reopen her case for further consideration
of the merits.

19

Carol Cherry (Donald Cherry), 47 ECAB 658 (1996).

9

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified. The July 6, 2009 decision of the
Office of Workers Compensation Programs is set aside. The case is remanded for further
proceedings by the Office consistent with this decision.
Issued: August 16, 2010
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


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

)
)
)
)
)
)
)
)

Docket No. 09-567
Issued: November 12, 2009

Appearances:
Wild Chang, Esq., for the appellant
No appearance, for the Director

Oral Argument June 2, 2009

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

JURISDICTION
On December 23, 2008 appellant, through counsel, filed a timely appeal from a
September 22, 2008 decision of the Office of Workers’ Compensation Programs’ terminating her
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s medical and
compensation benefits effective November 21, 2003; (2) whether appellant had any continuing
disability or residuals after November 21, 2003 due to her accepted conditions; and (3) whether
appellant sustained an emotional or psychological condition as a consequence of her accepted
injury.

FACTUAL HISTORY
Appellant, a 48-year-old customer service supervisor, sustained an injury on July 17,
2002, when she fell from a four-foot high dock at work. The Office accepted her traumatic
injury claim for cervical, thoracic and lumbar strains; left wrist and bilateral knee strains; and
right hip and head contusions.1 Appellant was treated by Dr. Lauri B. Hemsley, Board-certified
in the field of occupational medicine, who opined that she continued to experience residuals
from her accepted conditions. On December 12, 2002 Dr. Hemsley stated that appellant had
experienced an increase in pain due to stress on the job. All magnetic resonance imaging (MRI)
scans and x-rays were within normal limits. Dr. Hemsley opined that appellant could return to
full-time employment, provided that she was restricted from making forceful left hand motions
and that she could sit and stand at will.
The Office referred appellant, together with a statement of accepted facts and the entire
medical record, to Dr. Bunsri T. Sophon, an orthopedic surgeon, for a second opinion
examination. It asked Dr. Sophon to render an opinion as to whether appellant continued to
experience residuals from her accepted injury and, if so, whether she was disabled as a result of
those residuals. In a report dated December 26, 2002, Dr. Sophon provided a history of injury
and treatment, a review of the medical records and examination findings. His examination of the
cervical spine revealed full range of motion (ROM); normal curvature; no deformity, swelling,
inflammation or tenderness; no evidence of atrophy or spasm; and no palpable masses.
Dr. Sophon found full ROM of both wrists, with no swelling, tenderness or palpable masses.
Examination of the knees revealed no evidence of joint effusion, ligamentous instability,
deformity, tenderness or swelling. Extension was zero degrees bilaterally and flexion was
130/150 degrees. The neurological examination was grossly within normal limits, with normal
sensation and reflexes (2+) bilaterally. In summary, Dr. Sophon stated that there were no
abnormal objective findings to support appellant’s subjective complaints of pain in her neck, low
back, right thigh, left knee and left wrist. He opined that she had no residuals and no physical
limitations from her accepted conditions and that she required no further medical treatment. In a
supplemental report dated February 18, 2003, Dr. Sophon opined that appellant’s total disability
had ceased on December 16, 2002, when she returned to work.
The record contains a January 14, 2003 report from Dr. Herman R. Schoene, a Boardcertified orthopedic surgeon, who diagnosed bilateral wrist sprain. His examination revealed
good ROM, no deformity and no pain on motion. Dr. Schoene stated that x-rays were entirely
normal.
In a January 14, 2003 report, Dr. Hemsley stated that appellant’s MRI scans and x-rays
were normal. Noting that appellant had consistently shown mild tenderness over the left wrist
and across the back, with radiculopathy or loss of ROM, she indicated that appellant had been
placed “off work” based on subjective complaints of pain. On December 30, 2002 Dr. Hemsley
stated that appellant had been “out of work due to stress.”
1

Appellant’s December 9, 2003 traumatic injury claim for injuries allegedly sustained to her neck, back, spine,
legs and knees on November 24, 2003 was denied by decisions dated February 4, 2004, May 24, 2006 and
June 5, 2007. In a decision dated July 17, 2009, the Board affirmed the Office’s June 24, 2008 decision denying
appellant’s request for merit review. Docket No. 09-15 (issued July 17, 2009).

2

In a “Final Comprehensive Report” dated February 25, 2003, Dr. Hemsley stated that
there were “no true findings of disability on examination. She found full ROM in the shoulders,
wrists, elbows and torso; generalized full strength of the upper and lower extremities; decreased
sensation of the left hand, which was inconsistent with nerve root or dermatonal findings; normal
grip strength bilaterally; even hips and straight spine; negative Spurling’s and Fabere’s; no
tenderness over the left wrist snuff box; and no swelling, but some dorsal wrist tenderness.
Dr. Hemsley opined that appellant’s subjective complaints outweighed objective findings. She
indicated that “there may be some emotional overlay as well as stress-related overlay to her
symptoms. Therefore, her subjective complaints are exaggerated.”
On October 21, 2003 the Office proposed to terminate all compensation benefits based on
Dr. Sophon’s comprehensive, thorough and well-reasoned second opinion report, which
constituted the weight of the medical evidence. By decision dated November 21, 2003, it
finalized its termination of benefits. The Office also found that appellant had not sustained an
emotional or psychological condition as a consequence of her accepted work injuries.2
On November 20, 2004 appellant requested reconsideration. In support of her request,
she submitted a February 12, 2004 report from Dr. William Simpson, a treating physician, who
opined that she continued to experience residuals and was totally disabled as a result of her
accepted injuries.
Dr. Simpson diagnosed superimposed chronic cervical and lumbar
musculoligamentous sprains; cervical and lumbar disc herniations; internal derangement of the
left knee; right sciatica; and right hip sprain. He opined that appellant’s conditions were causally
related to her accepted July 17, 2002 injury and that she was temporarily totally disabled.
In a February 9, 2004 report, Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon,
provided examination findings, which he opined were consistent with degenerative arthritis of
the right hip. He found limited ROM of the cervical and lumbar spines and markedly positive
Tinels signs at the wrists. Dr. Tauber also found limited ROM of the right hip and a positive
straight leg raise test on the right. He stated that appellant’s complaints appeared to be related to
her industrial injuries and her repetitive motion duties during the course of her employment.
Appellant submitted a report dated May 27, 2003, from Dr. Othelia Ann Jurani, a treating
physician, who stated that she had been treating appellant since December 2002 for stress and
anxiety related to pain occurring due to a July 2002 work-related injury. On May 29, 2003
Robert Perez, a licensed clinical social worker, stated that he had been treating her since
December 12, 2002 for an acute stress disorder brought on by anxiety and depression related to a
physical injury at work. On July 2, 2003 Dr. H. Douglas Faber, a treating physician, diagnosed
acute stress disorder, which “appears to be originated/precipitated by the injuries at work on
July 17, 2002.”
By decision dated February 1, 2005, the Office denied modification of its November 21,
2003 termination decision. On January 31, 2006 appellant again requested reconsideration.

2

The record reflects that appellant has filed a separate emotional condition claim (File No. xxxxxx715) alleging
that treatment by individuals at the employing establishment and pain from her orthopedic injuries in the instant
claim are responsible for her stress condition.

3

In a January 24, 2005 report, Dr. Simpson opined that appellant required additional
medical care and was temporarily totally disabled until March 10, 2005. He diagnosed chronic
cervical musculoligamentous sprain; bilateral carpal tunnel syndrome (CTS); bilateral knee
internal derangement; sciatica of the right hip; and mental stress and depression. On April 8,
2005 Dr. Simpson again opined that appellant was temporarily totally disabled. He found
limited ROM in the left knee and decreased sensation in the medial nerve distribution in both
hands.
On July 12, 2005 Dr. Simpson disagreed with Dr. Sophon’s opinion that appellant had no
residuals from her accepted injury. He noted objective findings, including limited ROM in the
thoracic and lumbar spines; tenderness in both joint limes; positive McManus sign; decreased
motion in the right knee; positive electromyogram and nerve conduction study (EMG/NCS)
reflecting evidence of CTS; and decreased ROM with bilateral thenar space atrophy.
Dr. Simpson expressed his agreement with Dr. Tauber’s February 9, 2004 report.
In a decision dated April 7, 2006, the Office denied modification of its previous
decisions, finding that the weight of the medical evidence remained with Dr. Sophon. On
April 6, 2007 appellant again requested reconsideration.
In a January 5, 2007 report, Dr. Simpson opined that all of appellant’s residual objective
findings were a direct result of injuries sustained on July 17, 2002.
The Office found a conflict in medical opinion between appellant’s treating physicians
and the second opinion physician. It referred her to Dr. Satish K. Lal, a Board-certified
orthopedic surgeon, for an impartial medical examination.3 In a July 7, 2008 report, Dr. Lal
stated that his evaluation and review of the medical records was focused only on persistent pain
and stiffness in appellant’s lower back, radicular symptoms of numbness in her lower limbs and
pain and stiffness in her right hip. His examination revealed continued restricted ROM of the
lumbar spine; positive straight leg raises in both legs; decreased sensation to pinprick; and pain
and restricted ROM in the right hip. A report of an EMG/NCS showed possible right
lumbosacral radiculopathy. Dr. Lal diagnosed degenerative disc disease and herniated disc at
L4-5; degenerative arthritis of the right hip; lumbosacral muscle sprain; right hip sprain; and
lumbar radiculopathy. He recommended an x-ray of the right hip and an MRI scan of the lumbar
spine to assess her current status. Dr. Lal also recommended temporary total disability until the
studies were performed.
In an August 11, 2008 letter, the Office asked Dr. Lal to clarify his July 11, 2008 report,
stating that he had failed to fully answer the questions presented to him prior to his examination
of appellant. It asked him to provide a supplemental report after receiving the results of

3

The Board notes that the Office initially referred appellant to Dr. Ahmad Hajj, a Board-certified orthopedic
surgeon. Although Dr. Hajj performed an examination of appellant, he failed to provide a report to the Office.
Accordingly, the Office referred appellant to Dr. Lal on March 11, 2008. The record contains a copy of a medical
conflict statement and questions to the referee physician, which were forwarded to Dr. Hajj on April 20, 2007.
However, the record does not contain a copy of the medical conflict statement or questions to the referee physician
which were sent to Dr. Lal.

4

prescribed radiological studies and noted that a copy of the questions presented was enclosed
with the letter.4
After reviewing the results of new x-rays and MRI scan studies, Dr. Lal provided a
supplemental report dated August 27, 2008. He diagnosed mild degenerative arthritis of the right
hip and degenerative bulging disc at L3-4, L4-5 and L5-S1, with facet joint arthritis. Dr. Lal
opined that appellant’s July 17, 2002 work-related injury did not cause the degenerative arthritic
changes in the right hip, but that the symptoms of pain in her lower back, hip and lower limb
were caused by the accepted July 17, 2002 injury. In light of appellant’s persistent symptoms of
back pain and intermittent radiation of pain over both lower limbs, he recommended a series of
epidural steroidal injections. Dr. Lal indicated that her condition was not permanent and
stationary and recommended restrictions which precluded bending and stooping, pulling,
pushing, lifting or carrying heavy objects and climbing ladders.
By decision dated September 22, 2008, the Office modified its previous decisions
terminating appellant’s medical and compensation benefits. It expanded her July 17, 2002 claim
to accept an aggravation of degenerative arthritis of the lumbar spine and mild disc bulging.
However, the Office found that the medical evidence did not establish ongoing residuals relative
to any other body part.5
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.7 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9

4

The record does not contain a copy of the questions presented.

5

Appellant submitted additional evidence after the Office’s September 22, 2008 decision; however, the Board
cannot consider such evidence for the first time on appeal. The Board’s review of a case shall be limited to the
evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007).
6

Paul L. Stewart, 54 ECAB 824 (2003).

7

Elsie L. Price, 54 ECAB 734 (2003).

8

See Del K. Rykert, 40 ECAB 284 (1988).

9

James F. Weikel, 54 ECAB 660 (2003).

5

ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective November 21, 2003.
Prior to the November 21, 2003 termination decision, the medical evidence of record
consisted primarily of reports from appellant’s treating physician, Dr. Hemsley, who provided
essentially normal examination findings. On January 14, 2003 noting that MRI scans and x-rays
were normal, she stated that appellant had been placed “off work” based on subjective
complaints of pain. In a “Final Comprehensive Report” dated February 25, 2003, Dr. Hemsley
stated that there were “no true findings of disability on examination. She found full ROM in the
shoulders, wrists, elbows and torso; generalized full strength of the upper and lower extremities;
decreased sensation of the left hand, which was inconsistent with nerve root or dermatonal
findings; normal grip strength bilaterally; even hips and straight spine; negative Spurling’s and
Fabere’s; no tenderness over the left wrist snuff box; and no swelling, but some dorsal wrist
tenderness. Dr. Hemsley opined that appellant’s subjective complaints, which were exaggerated,
outweighed objective findings.
Dr. Schoene’s January 14, 2003 report provided no objective evidence of disability or
residuals relating to appellant’s wrist condition. His examination revealed good ROM, no
deformity and no pain on motion and x-rays were entirely normal.
The Office’s second opinion physician, Dr. Sophon, reviewed the entire record and
statement of accepted facts and performed a thorough examination of appellant. In his
December 26, 2002 report, he opined that she was not disabled as a result of her accepted
conditions and found no objective evidence of residuals directly attributable to her July 17, 2002
work injury. Dr. Sophon’s examination of the cervical spine revealed full ROM; normal
curvature; no deformity, swelling, inflammation or tenderness; no evidence of atrophy or spasm;
and no palpable masses. He found full ROM of both wrists, with no swelling, tenderness or
palpable masses. Examination of the knees revealed no evidence of joint effusion, ligamentous
instability, deformity, tenderness or swelling. Extension was zero degrees bilaterally and flexion
was 130/150 degrees. The neurological examination was grossly within normal limits, with
normal sensation and reflexes (2+) bilaterally. In summary, Dr. Sophon indicated that there were
no abnormal objective findings to support appellant’s subjective complaints of pain in her neck,
low back, right thigh, left knee and left wrist. He opined that she had no physical limitations due
to her accepted conditions and that she required no further medical treatment. The Board finds
that the Dr. Sophon’s well-rationalized report, which was based upon a proper factual and
medical background, represents the weight of the medical evidence and establishes that appellant
was no longer disabled and had no residuals from her accepted injury as of November 21, 2003.
Appellant did not submit any rationalized medical evidence to overcome the weight of
Dr. Sophon’s opinion or to create a conflict. Rather, reports from her treating physicians reflect
no objective findings to support her subjective complaints. The weight of the medical evidence
establishes that appellant was no longer disabled as a result of her accepted conditions and had
no injury-related residuals.

6

LEGAL PRECEDENT -- ISSUE 2
Following the proper termination of benefits, the claimant has the burden to establish
continuing employment-related residuals and/or disability with probative medical evidence.10
The medical evidence required to establish a causal relationship, generally, is rationalized
medical evidence. Rationalized medical evidence is medical evidence, which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“If there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.”12 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.13
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.14 If the
impartial medical specialist is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative or lacking in rationale, the Office must submit the
case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.15

10

See Talmadge Miller, 47 ECAB 673 (1996).

11

Joe L. Wilkerson, 47 ECAB 604 (1996); Alberta S. Williamson, 47 ECAB 569 (1996).

12

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
13

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

14

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Phillip H. Conte, 56 ECAB 213
(2004); Guiseppe Aversa, 55 ECAB 164 (2003).
15

Nancy Keenan, 56 ECAB 687 (2005); Talmadge Miller, supra note 10; Harold Travis, 30 ECAB 1071 (1979);
see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810(11)(c)(1)-(2) (April 1993).

7

ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision as to whether appellant had
any continuing disability or residuals due to her accepted injury after November 21, 2003.
Therefore, the case will be remanded to the Office for further development of the medical
evidence.
Once the Office properly terminated appellant’s compensation and medical benefits, she
had the burden to establish continuing residuals and/or disability due to her accepted injury with
probative medical evidence.16 It determined that a conflict of medical opinion existed regarding
the nature and extent of any continuing residuals from appellant’s accepted conditions, based on
the opinions of Dr. Simpson and Dr. Sophon, and referred appellant to Dr. Lal for an impartial
medical examination. The Board finds that there was no conflict in medical opinion as to
whether appellant had continuing residuals or disability at the time the Office referred appellant
to Dr. Lal in 2008. Therefore, Dr. Lal’s July 7, 2008 report is not entitled to the special weight
reserved for an impartial medical specialist.
As noted above, the Act provides for the appointment of an impartial medical examiner,
whose opinion shall be accorded special weight, “if there is disagreement between the physician
making the examination for the United States and the physician of the employee.”17 In the
instant case, at the time the Office referred appellant to Dr. Lal, there was no medical report of
record from an Office physician which even addressed the issue of continuing residuals or
disability after the date of termination. Dr. Sophon’s December 26, 2002 report, by virtue of its
date, does not constitute substantial evidence of appellant’s disability or continuing residuals
after November 21, 2003 and is insufficient to create a conflict on that issue. Therefore,
Dr. Lal’s July 7, 2008 report is entitled only to the weight of a second opinion report.
Appellant’s treating physicians opined that she was disabled as a result of continuing
injury-related residuals. On February 9, 2004 Dr. Tauber provided examination findings, which
he opined were consistent with degenerative arthritis of the right hip. He found limited ROM of
the cervical and lumbar spines and markedly positive Tinels signs at the wrists. Dr. Tauber also
found limited ROM of the right hip and a positive straight leg raise test on the right. He stated
that appellant’s complaints appeared to be related to her industrial injuries and her repetitive
motion duties during the course of her employment. Dr. Tauber’s report did not provide detailed
examination findings or explain how her current condition was causally related to accepted
injury; however, his report supports continuing work-related residuals and disability.
On February 12, 2004 Dr. Simpson diagnosed superimposed chronic cervical and lumbar
musculoligamentous sprains; cervical and lumbar disc herniations; internal derangement of the
left knee; right sciatica; and right hip sprain and opined that her conditions were causally related
to the July 17, 2002 injury. On January 24, 2005 he opined that appellant required additional
medical care and was temporarily totally disabled until March 10, 2005. Dr. Simpson diagnosed
16

See Talmadge Miller, supra note 10.

17

5 U.S.C. § 8123(a); see Raymond A. Fondots, supra note 12; Rita Lusignan (Henry Lusignan), supra note 12.
See also Sharyn D. Bannick, supra note 13.

8

chronic cervical musculoligamentous sprain; bilateral CTS; bilateral knee internal derangement;
sciatica of the right hip; and mental stress and depression. On April 8, 2005 he found limited
ROM in the left knee and decreased sensation in the medial nerve distribution in both hands and
again opined that appellant was temporarily totally disabled. On July 12, 2005 Dr. Simpson
disagreed with Dr. Sophon’s opinion that appellant had no residuals from her accepted injury.
He noted objective findings, including limited ROM in the thoracic and lumbar spines;
tenderness in both joint limes; positive McManus sign; decreased motion in the right knee;
positive EMG/NCS reflecting evidence of CTS; and decreased ROM with bilateral thenar space
atrophy. In a January 5, 2007 report, Dr. Simpson opined that all of appellant’s residual
objective findings were a direct result of injuries sustained on July 17, 2002. None of
Dr. Simpson’s reports contain a fully rationalized explanation as to how appellant’s diagnosed
conditions are causally related to the July 17, 2002 incident. However, the reports provide
detailed objective findings and consistently reflect a reasoned opinion that her conditions are due
to the accepted injury.
The Office referred appellant to Dr. Lal for an opinion as to whether she had residuals or
disability related to her accepted injury. However, Dr. Lal’s reports are unclear and do not
provide a rationalized opinion on the issue which he was asked to address. His July 7, 2008
report did not consider the totality of appellant’s accepted conditions, which included cervical,
thoracic and lumbar strains; left wrist and bilateral knee strains; and right hip and head
contusions. Dr. Lal diagnosed degenerative disc disease and herniated disc at L4-5; degenerative
arthritis of the right hip; lumbosacral muscle sprain; right hip sprain; and lumbar radiculopathy
and recommended temporary total disability until radiographic studies were performed.
However, he did not provide an opinion as to whether appellant’s condition was causally related
to her accepted injury. Medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value.18 In his August 27, 2008 supplemental
report, Dr. Lal diagnosed mild degenerative arthritis of the right hip and degenerative bulging
disc at L3-4, L4-5 and L5-S1, with facet joint arthritis. He opined, without explanation, that
appellant’s July 17, 2002 work-related injury did not cause the degenerative arthritic changes in
the right hip, but that the symptoms of pain in her lower back, hip and lower limb were caused
by the accepted injury. The Board is unable to determine from Dr. Lal’s statement whether he
believes appellant’s condition was a continuation or an exacerbation, of her preexisting
condition. He failed to offer any medical reasoning in support of his conclusion.19 The Board
has held that a medical opinion that is not fortified by rationale is of diminished probative
value.20
The Board notes that the Office properly requested clarification of Dr. Lal’s July 7, 2008
report, in light of the fact that he failed to fully answer the questions presented to him by the
Office.21 As Dr. Lal’s supplemental report was also vague and lacking in rationale, the Office
was obliged to obtain an additional supplemental report or to submit the case record and a
18

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

19

See Elaine Sneed, 56 ECAB 373 (2005).

20

Cecilia M. Corley, 56 ECAB 662 (2005).

21

L.R. (E.R.), supra note 14; Phillip H. Conte, supra note 14; Guiseppe Aversa, supra note 14.

9

detailed statement of accepted facts to a second impartial specialist for the purpose of obtaining
his rationalized medical opinion on the issue.22 The Office failed to do so.
On appeal, appellant’s representative and her physician contend that Dr. Lal’s July 7,
2008 report is insufficient to establish that she had no continuing residuals from her accepted
injury and that objective evidence proves otherwise.23 The Board agrees that Dr. Lal’s report
requires clarification and elaboration.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter.24 While the claimant has the responsibility to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence. It has the
obligation to see that justice is done.25 Accordingly, once the Office undertakes to develop the
medical evidence further, it has the responsibility to do so in the proper manner.26 As it
undertook development of the medical evidence by referring appellant to Dr. Lal, it had an
obligation to secure a report adequately addressing the relevant issue.27 The Office’s obligation
to secure clarification of Dr. Lal’s report was not automatically satisfied by its request for a
supplemental report. The Office’s obligation continues until it receives a proper report.
Therefore, the case shall be remanded to the Office for a supplemental opinion from Dr. Lal,
which provides clarification and elaboration. If Dr. Lal is unwilling or unable to clarify and
elaborate on his opinion, the case should be referred to another appropriate specialist. After such
further development as the Office deems necessary, an appropriate decision should be issued
regarding this matter.
LEGAL PRECEDENT -- ISSUE 3
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of, employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
Once the work-connected character of any injury has been established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent nonindustrial cause and so long as it is clear that the real
operative factor is the progression of the compensable injury, associated with an exertion that in
itself would not be unreasonable under the circumstances.28
22

Supra note 15.

23

The Board notes that appellant’s representative did not file a pleading in support of this appeal. However, he
and Dr. Simpson appeared before the Board on June 2, 2009 to present oral argument.
24

Vanessa Young, 55 ECAB 575 (2004).

25

Richard E. Simpson, 55 ECAB 490 (2004).

26

Melvin James, 55 ECAB 406 (2004).

27

Peter C. Belkind, 56 ECAB 580 (2005).

28

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

10

ANALYSIS -- ISSUE 3
The Board finds that the medical evidence is insufficient to establish that appellant
developed a stress condition as a consequence of her accepted injury.
Medical evidence of record relevant to appellant’s alleged stress condition consists of
reports from Dr. Hemsley, Dr. Jurani, Dr. Faber and Mr. Perez. None of their reports contain a
rationalized medical opinion explaining how appellant’s stress and anxiety was causally related
to her accepted conditions. On December 30, 2002 Dr. Hemsley stated that appellant had been
“out of work due to stress. On February 25, 2003 she stated that “there may be some emotional
overlay as well as stress-related overlay to her symptoms. Dr. Hemsley did not provide a
definitive diagnosis or an opinion as to the cause of appellant’s depression. The Board has long
held that medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.29
Moreover, Dr. Hemsley is not an expert in the area of psychology or psychiatry.
On May 27, 2003 Dr. Jurani stated that she had been treating appellant since
December 2002 for stress and anxiety related to pain occurring due to a July 2002 work-related
injury. On May 29, 2003 Mr. Perez, a licensed clinical social worker, stated that he had been
treating appellant since December 12, 2002 for an acute stress disorder brought on by anxiety
and depression related to a physical injury at work. On July 2, 2003 Dr. Faber diagnosed acute
stress disorder, which “appears to be originated/precipitated by the injuries at work on
July 17, 2002.” None of these reports contains an explanation as to how appellant’s diagnosed
stress condition resulted from her pain symptoms. Medical conclusions unsupported by rationale
are of little probative value.30
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.31
The Board finds that the evidence of record is insufficient to discharge appellant’s burden
of establishing that her claimed stress condition was a consequence of her accepted injury.32

29

Michael E. Smith, supra note 18.

30

Willa M. Frazier, 55 ECAB 379.

31

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

32

The Office stated in its October 21, 2003 notice of proposed termination that appellant had filed an emotional
condition claim (File No. xxxxxx715), in which she alleged that she sustained a stress condition due both to
harassment in the workplace and pain from her orthopedic injuries. It addressed appellant’s claim for a
consequential stress-related condition in its November 21, 2003 termination decision.

11

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits effective November 21, 2003. The Board also finds that this case is not in
posture for a decision as to whether she had any continuing residuals or disability after
November 21, 2003. The Board further finds that appellant failed to establish that she developed
an emotional condition as a consequence of her accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2008 decision of the Office of
Workers’ Compensation Programs’ is affirmed as to the termination of medical and
compensation benefits effective November 21, 2003 and set aside and remanded for further
development of the medical evidence on the issue of continuing residuals and disability. It is
further ordered that the September 22, 2008 decision is affirmed as to the denial of appellant’s
request to expand her claim to include a consequential emotional condition.33
Issued: November 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

33

The Board’s ruling does not affect the Office’s expansion of appellant’s claim to include an aggravation of
degenerative arthritis of the lumbar spine, with bulging of the lumbar discs in the L3-4, L4-5 and L5-S1 regions.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1787
Issued: February 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 7, 2016 appellant, through counsel, filed a timely appeal from a May 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant sustained bilateral carpal tunnel syndrome and a bilateral
elbow condition causally related to factors of her federal employment.
FACTUAL HISTORY
On September 16, 2015 appellant, then a 44-year-old human resources assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome and a bilateral elbow condition due to factors of her federal employment. She related
that beginning March 1998 she engaged in repetitive work duties using a computer and
telephone, including handwriting notes items when she was first employed. Appellant did not
stop work and her duties did not change.
OWCP, by letter dated October 14, 2015, requested additional factual and medical
information from appellant, including a detailed description of the work factors to which she
attributed her condition and a comprehensive medical report from her attending physician
addressing the relationship between any diagnosed condition and the identified employment
factors.
In a report dated August 10, 2012, Dr. Scott F. Garberman, a surgeon, related that
appellant was diagnosed with bilateral carpal tunnel syndrome in 2009. He indicated that an
electromyogram revealed mild carpal tunnel syndrome bilaterally. Dr. Garberman opined, “In
reviewing [appellant’s] activities and job, within reasonable medical probability there is causality
between [her] length of activities and work in her present clinical state.”
On May 21, 2013 appellant underwent a right carpal tunnel release and multiple flexor
tenosynovectomies. On March 20, 2015 she underwent a tenotomy of the left lateral epicondyle.
On July 20, 2015 appellant provided a summary of her job duties. She advised that she
worked on the computer daily. Appellant submitted additional medical evidence, including
progress reports describing her treatment in 2014 and 2015 for lateral epicondylitis of the elbows
bilaterally and progress reports after her March 20, 2015 surgery.
By decision dated December 4, 2015, OWCP denied appellant’s claim as she had failed
to factually establish that she was exposed to the identified work factors. It further found that the
medical evidence was insufficient to support causal relationship between a diagnosed condition
and her employment. Appellant requested an oral hearing before a representative of the Branch
of Hearings and Review.
At the hearing, held on March 4, 2016, appellant described in detail the work factors to
which she attributed her condition. She advised that she began working for the employing
establishment in 1986. Appellant’s first job required completing handwritten forms for about
half of the workday. She subsequently worked from 1987 to 1989 ordering supplies, which
required entering information on a computer. In 1989, appellant inventoried property and
completed either handwritten or typed reports. She subsequently performed administrative work
handwriting and using the computer for 90 percent of the workday. In 1998, appellant began

2

working in her current position typing and answering telephones. She related, “A lot of it [is] on
the keyboard now because we [have] gone to electronic, so there [are] two monitors I have, so
you [are] on with the mouse going from one screen to the next screen reviewing documents.”
Appellant indicated that since 1998 she had spent around 90 percent of her workday either into
the keyboard or working with the telephone and mouse. She also scanned documents on the
computer.
On March 18, 2016 OWCP provided the employing establishment with a copy of the
hearing transcript.
In a report dated October 2, 2015, received by OWCP on March 22, 2016, Dr. Garberman
described appellant’s history of wrist pain and numbness beginning in 2008, treated
conservatively, and her history of a right carpal tunnel release on May 21, 2013.3 He advised
that she did not have a systemic condition such as diabetes or a connective tissue disorder.
Dr. Garberman related, “[Appellant] has been employed for the [employing establishment] since
March 2, 1998. I have reviewed the job description which was provided as a technician at
recruiting battalion headquarters. The job is repetitious and is full time at approximately eight
hours per day.” He diagnosed right median neuritis, a right upper extremity repetitive stress
injury, left carpal tunnel syndrome/inflammatory flexor tenosynovitis, and left lateral
epicondylitis. Dr. Garberman attributed the diagnosed conditions to appellant’s work duties. He
asserted, “The medical reason behind this is the length of [appellant’s] employment, the
repetitious nature of her job, and the physical examinations obtained by me in this office. [She]
has no outlined secondary issues which could be precipitating factors as there is no part time
employment, systemic disorder, or hobbies which could precipitate this.”
By decision dated May 12, 2016, an OWCP hearing representative affirmed the
December 4, 2015 decision. He found that appellant had not factually established that she
performed repetitive work duties or adequately explained that her work duties were sufficient to
cause an upper extremity condition.
On appeal counsel argues that appellant provided both a written statement and testimony
at the hearing about her job duties. He notes that the employing establishment did not dispute
exposure to the implicated work factors. Counsel also maintains that appellant provided
sufficient medical evidence to establish lateral upper extremity conditions causally related to her
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
3

Appellant also submitted additional progress reports and the results of electrodiagnostic testing in 2009 and
2014.
4

Supra note 2.

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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 an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors or conditions which he believes caused or adversely affected a condition for
which compensation is claimed.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,11 must be one of reasonable medical certainty12 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.13
ANALYSIS
Appellant filed an occupational disease claim alleging bilateral carpal tunnel syndrome
and a bilateral elbow condition causally related to factors of her federal employment. She
attributed her condition to repetitive use of the computer, telephone, and mouse at the employing
establishment. OWCP denied appellant’s claim based on its finding that she did not sufficiently
identify the work factors to which she attributed her condition.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

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

10

P.G., Docket No. 15-1345 (issued August 23, 2016); Lori A. Facey, 55 ECAB 217 (2004).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

John W. Montoya, 54 ECAB 306 (2003).

13

Judy C. Rogers, 54 ECAB 693 (2003).

4

The Board finds that the case is not in posture for decision. At the hearing, appellant
thoroughly described her work duties. She maintained that, beginning in 1986 she copied
handwritten forms, from 1987 to 1989, she entered information on a computer, and beginning in
1989 she inventoried property and completed handwritten and typed reports. Appellant began
working in her current position in 1998, which required using a computer, a telephone, and a
mouse, scrolling between two monitors to review documents. She specified that she used a
keyboard or a telephone and mouse for 90 percent of her workday. OWCP provided the
employing establishment with a copy of the hearing transcript and 30 days to comment on
appellant’s testimony. The employing establishment did not challenge her description of her
work duties nor did it provide any alternative position description and there is no evidence to
suggest that her description was inaccurate. Consequently, the Board finds that appellant has
established exposure to the work duties she identified as causing her condition.14
The hearing representative did not review or consider the medical evidence as he found
that appellant had not factually established the work factors as causing her condition.15
Appellant has submitted August 10, 2012 and October 2, 2015 reports from Dr. Garberman
diagnosing bilateral upper extremity conditions and addressing causation. On remand, OWCP
should review the medical evidence and determine whether she sustained an upper extremity
condition as a result of the established employment factors. After such further development as
deemed necessary, it shall issue de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

See N.B., Docket No. 13-0513 (issued August 27, 2013).

15

OWCP’s hearing representative noted that appellant’s work duties were not sufficient to have resulted in the
diagnosed conditions. The issue of whether the established work factors caused or aggravated a medical condition,
however, is a medical determination.

5

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: February 1, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Schenectady, NY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0346
Issued: November 26, 2019

Case Submitted on the Record

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

On December 3, 2018 appellant filed a timely appeal from an October 30, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 19-0346.
This case has previously been before the Board.1 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On January 3, 1996 appellant, then a 46-year-old aircraft mechanic foreman, filed a notice
of traumatic injury (Form CA-1) alleging that he sustained a back injury while moving lockers
while in the performance of duty. He stopped work on January 8, 1996 and worked intermittently
before returning to full duty work on October 5, 1998. OWCP initially accepted lumbosacral strain
and subsequently accepted displacement of a lumbar intervertebral disc without myelopathy and
other acquired deformities of the ankle and foot, bilateral. On August 14, 1996 appellant
underwent a hemilaminotomy and microdiscectomy at L4-5.2 By decision dated September 9,
1

Docket No. 16-0715 (issued August 11, 2016); Docket No. 17-1390 (issued April 23, 2018).

2
Appellant was suspended without pay effective April 21, 2002 and terminated for cause effective
September 12, 2002.

2019, OWCP denied appellant’s claim for a recurrence of disability, commencing
September 20, 2006. Appellant requested reconsideration and by decision dated June 15, 2011,
OWCP vacated the prior decision and accepted appellant’s recurrence claim. On October 8, 2014,
OWCP proposed to rescind the June 15, 2011 acceptance of the recurrence claim. OWCP finalized
the rescission by decision dated May 15, 2015. Appellant requested reconsideration, but by
decision dated February 9, 2016, OWCP denied modification of its prior decision. On
February 29, 2016, appellant appealed to the Board. By decision dated August 11, 2016, the Board
found that OWCP improperly rescinded its acceptance of appellant’s recurrence claim .3
On November 18, 2016 OWCP again accepted appellant’s claim for a recurrence of
disability commencing September 20, 2006. However, on March 15, 2017, it again proposed to
rescind its acceptance of appellant’s recurrence claim. By decision dated April 28, 2017, OWCP
finalized that rescission and by decision dated May 1, 2017 it denied appellant’s recurrence claim.
On June 8, 2017 appellant appealed the April 28 and May 1, 2017 decisions to the Board. By
decision dated April 23, 2018, the Board found that OWCP had met its burden of proof to rescind
its acceptance of the September 20, 2006 recurrence claim. The Board further found that appellant
had not met his burden of proof to establish a recurrence of total disability commencing
September 20, 2006 and that appellant had not met his burden of proof to establish a recurrence of
total disability commencing April 8, 2002 causally related to his January 3, 1996 employment
injury.4
In a letter dated July 13, 2017, which was during the pendency of appellant’s prior appeal
to the Board, OWCP provided Dr. Kevin Scott, a Board-certified orthopedic surgeon who had
provided a January 18, 2017 second-opinion evaluation, with an updated statement of accepted
facts (SOAF). In the letter accompanying, the SOAF it asked that he provide a supplemental report
regarding appellant’s lumbar condition. On July 27, 2017 OWCP received a July 18, 2017
addendum report from Dr. Scott in which he noted appellant’s 1996 employment injury and
indicated that it had been his most significant injury.
On August 17, 2018 appellant, through his then-representative, requested reconsideration
and submitted additional medical evidence including several treatment notes from Dr. Paul
Salerno, Board-certified in physical medicine and rehabilitation, dated May 1, 2017 to
October 18, 2018.
By decision dated October 30, 2018, OWCP denied modification of its April 28 and May 1,
2017 decisions. It noted medical evidence submitted, but did not reference the July 18, 2017 report
from Dr. Scott which was new evidence not previously considered by OWCP or the Board.
The Board has duly considered the matter and finds that this case is not in posture for a
decision. In the case of William A. Couch, the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by it before the
final decision is issued. While OWCP is not required to list every piece of evidence submitted to
the record, the record is clear that Dr. Scott’s July 18, 2017 report was received, but not reviewed
3

Docket No. 16-0715, supra note 1.

4

Docket No. 17-1390, supra note 1.

2

by OWCP, prior to the issuance of its October 30, 2018 decision.5 As the Board’s decisions are
final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter
of the claim properly submitted to OWCP be reviewed and addressed.6
The case must, therefore, be remanded for proper review of the all the evidence of record.
Following any necessary further development, OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: November 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

In the October 30, 2018 decision, OWCP merely noted that Dr. Scott had submitted a January 18, 2017 report that
had previously been reviewed by the Board.
6

S.D., Docket No. 18-1507 (issued June 21, 2019).

3