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

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Appearances:
Christopher Henwood, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0898
Issued: January 15, 2019

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 March 22, 2018 appellant, through her representative, filed a timely appeal from a
February 13, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from the last merit decision dated February 14, 2017, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 4, 2017 appellant, then a 45-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that day she injured her left shoulder while picking up a tub of flats
in the performance of duty. She stopped work on January 5, 2017.
S.R., the officer-in-charge, in a January 5, 2017 statement, related that in a discussion with
appellant on January 4, 2017, she mentioned a shoulder problem and that she was unsure of the
cause.
In a January 5, 2017 authorization for examination and/or treatment (Form CA-16), S.J.,
an employing establishment official, authorized treatment for the alleged January 4, 2017 injury.
By development letter dated January 10, 2017, OWCP advised appellant that the evidence
of record was insufficient to establish her claim. It noted that she had not submitted medical
evidence containing a firm diagnosis causally related to the alleged incident. OWCP afforded
appellant 30 days to submit additional evidence, including a narrative report from her treating
physician.
In a January 5, 2017 work restriction and limitation form, Shannon Sozzi, a nurse
practitioner, restricted appellant from using her left arm. On a January 5, 2017 hospital form, she
diagnosed left shoulder sprain and tendinitis. Ms. Sozzi reported that appellant had a left shoulder
injury on January 4, 2017 as the result of lifting a tub of mail weighing 5 to 10 pounds.
The record also contains duty status reports (CA-17 forms) dated January 5, 23, and 26,
2017 diagnosing left shoulder strain, an injury date of January 4, 2017, a description of how the
injury occurred, and work restrictions.3
A January 5, 2017 x-ray noted a finding of normal left shoulder.
On January 12, 19, and 26, 2017 appellant was again seen by Ms. Sozzi for follow-up visits
for her claimed January 4, 2017 injury. Her diagnosis was expanded to include left shoulder strain.
By decision dated February 14, 2017, OWCP denied appellant’s claim. It found that she
had not established that the diagnosed medical condition was causally related to the accepted
January 4, 2017 employment incident.
In a letter dated January 30, 2018, appellant’s representative requested reconsideration.
Additional medical evidence was received.

3

These forms either contained an illegible signature or were unsigned.

2

Physical therapy notes covering the period August 2 to 23, 2017 signed by Amber Hughes,
a physical therapist, noted diagnoses of left shoulder pain, left shoulder impingement syndrome,
and left shoulder weakness. Ms. Hughes, in an August 30, 2017 discharge report, noted that
appellant’s physical therapy had ended.
A June 6, 2017 Form CA-17 signed by Jennifer Coughenam, a nurse practitioner, noted
diagnoses of left shoulder sprain and rotator cuff tear and work restrictions. She also related that
appellant’s injury occurred on January 4, 2017 as the result of lifting a tub of mail weighing 10
pounds.
Dr. Paul Rush, an examining Board-certified orthopedic surgeon, in a June 14, 2017 work
status report, diagnosed left shoulder strain and released appellant to return to work on June 17,
2017 with restrictions.
In a June 21, 2017 Form CA-17, Dr. Rush diagnosed left shoulder sprain, provided work
restrictions, a return to work date, and noted an injury date of January 4, 2017.
On July 17, 2017 appellant was seen for a follow-up visit by Dr. Rush who noted that
appellant had been seen for chronic left shoulder pain. Dr. Rush noted that appellant had been
referred for physical therapy and that she had a work injury. Physical examination findings were
detailed along with a diagnosis of left shoulder pain. Dr. Rush opined that appellant’s work injury
either caused or aggravated her left shoulder pain.
A September 30, 2017 magnetic resonance imaging (MRI) scan of appellant’s left shoulder
revealed inferior and anterior inferior labrum tear with suspected paralabral cyst, mild
glenohumeral joint effusion or synovitis, and no evidence of rotator cuff tear.
By decision dated February 13, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
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 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 which: (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

4

5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

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A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it 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 properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her timely request for reconsideration appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, nor did she advance a relevant legal argument not
previously considered by OWCP.9 Consequently, appellant is not entitled to review of the merits
of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether appellant has
submitted sufficient evidence that her diagnosed medical condition was causally related to the
accepted employment incident.
In support of her request for reconsideration, appellant submitted a July 17, 2017 note from
Dr. Rush diagnosing left shoulder pain, which he opined was either caused or aggravated by her
work injury. While this report was new, it did not provide relevant and pertinent new evidence.
The Board notes that pain is a description of a symptom rather than a firm diagnosis of a
compensable medical condition.10 This report is therefore irrelevant as it does not address whether
a diagnosed medical condition was causally related to the accepted employment incident.11
OWCP also received CA-17 forms dated June 13 and 21, 2017, a June 14, 2017 work status
report from Dr. Rush which diagnosed a left shoulder strain, and a September 30, 2017 MRI scan
which found a left shoulder labrum tear and mild glenohumeral joint effusion or synovitis. While
this evidence is new, it does not address the relevant issue in this claim regarding causal

6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

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

9

See J.F., Docket No. 16-1233 (issued November 23, 2016).

10

K.W., Docket No. 12-1590 (issued December 18, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

11

The Board has held that the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case. See P.H., Docket No. 18-1020 (issued November 1, 2018);
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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relationship, by providing an opinion regarding the cause of the diagnosed conditions. As such,
these reports are insufficient to warrant merit review.12
Appellant also submitted reports from Ms. Hughes, a physical therapist, and Jennifer
Coughenam, a nurse practitioner, diagnosing left shoulder conditions. However, physical
therapists and nurse practitioners are not considered physicians as defined under FECA and
therefore their opinions are of no probative value.13
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or constitute
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

M.C., Docket No. 14-0021 (issued March 11, 2014); M.H., Docket No. 13-2051 (issued February 21, 2014).

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
14

The Board notes that a Form CA-16 (authorization for examination and/or treatment) was issued by the employing
establishment on January 5, 2017. When the employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated February 13, 2018 is affirmed.
Issued: January 15, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, INTERNATIONAL
SERVICE CENTER, JOHN F. KENNEDY
INTERNATIONAL AIRPORT, Jamaica, NY,
Employer
__________________________________________

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

Docket No. 19-1158
Issued: October 29, 2019

Case Submitted on the Record

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

JURISDICTION
On April 27, 2019 appellant filed a timely appeal from December 19, 2018 and April 12,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 22, 2018 appellant, then a 68-year-old full-time regular mail handler, filed an
occupational disease claim (Form CA-2) for a back injury sustained while in the performance of
duty. She noted that she first realized that her condition was caused or aggravated by factors of
her federal employment on May 31, 2018. Appellant stopped work on the filing date of her claim
and returned to modified-duty work on February 16, 2018.
In support of her claim, appellant submitted a lumbar spine magnetic resonance imaging
(MRI) scan report dated May 31, 2018 from Dr. John W. Duncan, a Board-certified diagnostic
radiologist. Dr. Duncan provided an impression of multilevel spondylosis most pronounced at L34 and L4-5 for which there were diffuse disc bulges with advanced thickening of ligamentum
flavum contributing to severe spinal canal stenosis at these levels. He also provided an impression
of mild neural foraminal narrowing on the left of L3-4 and bilaterally at L4-5.
Appellant also submitted an official description of her mail handler position.
OWCP subsequently received a June 30, 2018 medical report by Dr. Moiz I. Manaqibwala,
an orthopedic surgeon. Dr. Manaqibwala diagnosed spinal stenosis, lumbar radiculopathy, and
right foot drop. He advised that appellant may not return to work until further notice.
OWCP also received an attending physician’s report (Form CA-20) dated July 11, 2018
from Dr. Alfred F. Faust a Board-certified orthopedic surgeon. Dr. Faust noted a date of injury as
May 31, 2018. He also noted that appellant reported the history of injury as unloading mail from
a conveyor belt at work and having low back pain for months which had worsened since loading
mail at work. Dr. Faust diagnosed lumbar radiculopathy and lumbar spinal stenosis. He checked
a box marked “yes” indicating that appellant’s conditions were caused or aggravated by the
described employment activity. Dr. Faust explained that she had developed radicular back pain
while unloading mail from a conveyor belt. He advised that appellant was totally disabled from
work commencing July 11, 2018.
In a July 11, 2018 duty status report (Form CA-17), Dr. Faust described a history of injury
of an occupational disease involving repetitive motion of the back/leg. He restated his prior
diagnosis of lumbar radiculopathy and further diagnosed severe back pain. Dr. Faust advised that
appellant’s conditions were due to a work injury. He further advised that she was unable to
perform her regular work duties.
In a development letter dated July 27, 2018, OWCP notified appellant of the factual and
medical deficiencies of her claim. It advised her of the type of evidence needed and provided a
questionnaire for her completion. Appellant was afforded 30 days to submit the necessary
evidence.
OWCP subsequently received an additional report dated July 10, 2018 from Dr. Faust who
reiterated appellant’s history of injury and discussed findings on physical examination. He again
assessed appellant as having lumbar radiculopathy and degenerative lumbar spinal stenosis.
Dr. Faust noted that very high-grade stenosis at L4-5 and moderate stenosis at L3-4 were causing
right-sided root compromise.

2

In an August 8, 2018 report, Dr. Arash D. Yadegar, an orthopedic surgeon and a Boardcertified physiatrist, listed a date of injury as May 31, 2018. He noted appellant’s low back and
right leg pain and that she was off work as a result of her injury, and reported findings on physical
examination. Dr. Yadegar provided assessments of radiculopathy of the lumbosacral region, and
unspecified low back pain laterally with unspecified chronicity and unspecified presence of
sciatica.
In a statement dated August 14, 2018, appellant responded to OWCP’s development
questionnaire. She alleged that her job duties involved unloading and sorting bags of mail
weighing 1 to 70 pounds from airline containers and that her job required repetitive bending,
stretching, and lifting heavy mail. Appellant related that after many years of performing these
work duties, she began to experience occasional lower back pain that she treated with over-thecounter medication. She noted that, in April 2007, she injured her left hand, wrist, and arm while
unloading a container.2 Following her injury, appellant returned to limited-duty work four hours
a day with restrictions, in 2010. Her work duties at that time included sorting and traying mail off
a conveyor belt which involved extensive lifting, stretching, and bending to place the mail into
postcons. Appellant’s workstation consisted of a stool with worn-out padding over a metal plate
with no back support. She claimed that since working this duty, her back pain had progressed and
became unbearable in 2018. Appellant reported her pain to her supervisor who disregarded her
complaint. She indicated that several physicians had told her that she had developed severe spinal
stenosis. Appellant claimed that she never engaged in any activities outside her federal
employment that would have contributed to her back condition and never had any similar
conditions prior to her federal employment. She noted that she was seen by Dr. George Blatti an
attending family practitioner, on May 31, 2018 regarding her back pain. Appellant continued to
work off and on until June 22, 2018 when her pain worsened. She noted the subsequent medical
treatments she received from Drs. Manaqibwala, Faust, and Yadegar.
Appellant submitted a June 25, 2018 letter from Dr. Blatti who noted that he had been
appellant’s physician for the past 30 years. He indicated that she had suffered from degenerative
joint disease for the past 10 years, however, over the past three months her pain had become so
severe that she had trouble attending to her activities of daily living, including her job. Dr. Blatti
related that appellant’s job required special work which he believed contributed to her worsening
back pain. He noted that the May 31, 2018 lumbar spine MRI scan revealed significant
degenerative joint disease of the entire spine and spinal stenosis at L3-4 and L4-5 which caused
sciatic pain in both legs, the right being more severe than the left. There was also significant
swelling of the ligamentum flavum which encroached on the foraminae causing significant spinal
stenosis. Dr. Blatti advised that due to the marked progression of appellant’s pain, she was no
longer able to tolerate the stresses of her work environment. As such, he recommended that she
stop work on June 22, 2018. Dr. Blatti related that appellant was scheduled to see an orthopedic
surgeon as soon as possible and was placed on increased doses of pain medication which would
be contraindicated if she continued to work.
Appellant also submitted an additional report dated June 30, 2018 from Dr. Manaqibwala.
Dr. Manaqibwala noted a history of injury that appellant experienced acute lower back pain after
2

Appellant noted she had filed a claim for her April 2007 injuries under OWCP File No. xxxxxx293.

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sorting mail on May 31, 2018. He reported findings on physical examination and reviewed a
lumbar spine MRI scan. Dr. Manaqibwala reiterated his prior assessments of degenerative lumbar
spinal stenosis and lumbar radiculopathy and further provided an assessment of osteoarthritis of
the spine with radiculopathy, lumbar region.
OWCP thereafter received a progress note dated August 20, 2018 from Samantha Flaum,
a physician assistant, who noted a date of injury as May 31, 2018, reported findings on physical
examination, and provided assessments of lumbar radiculopathy and degenerative lumbar spinal
stenosis.
In an August 20, 2018 duty status report (Form CA-17), Dr. Faust again opined that
appellant’s lumbar radiculopathy and degenerative lumbar spine stenosis were due to the injury
she sustained on May 31, 2018 and that she was unable to perform her regular work.
By decision dated September 7, 2018, OWCP denied appellant’s occupational disease
claim. It accepted that she performed duties as a mail handler as described, but denied her claim
because the medical evidence of record was insufficient to establish a medical diagnosis causally
related to the accepted employment factors. OWCP concluded, therefore, that the requirements
had not been met to establish an injury causally related to the accepted employment factors.
On October 1, 2018 appellant requested reconsideration.
In an additional Form CA-17 duty status report dated September 25, 2018, Dr. Faust
repeated appellant’s history of injury and diagnosed lumbar herniated nucleus pulposus, stenosis
due to injury. He also repeated his opinion from his July 11 and August 20, 2018 reports regarding
her disability status.
OWCP, by decision dated December 19, 2018, denied modification of the September 7,
2018 decision. It found that none of the medical reports submitted contained a rationalized medical
opinion establishing causal relationship between appellant’s diagnosed lumbar conditions and the
accepted employment factors.
On January 22, 2019 appellant requested reconsideration.
Thereafter, OWCP continued to receive medical evidence from Dr. Faust. In a narrative
report dated January 15, 2019, Dr. Faust noted that appellant presented for follow-up evaluation
of continuing severe pain in her low back and right leg. He noted that she attributed her worsening
symptoms to sorting mail and reaching down on a conveyor belt on May 31, 2018. Dr. Faust
reported physical examination findings. He restated his prior assessments of lumbar radiculopathy
and degenerative lumbar spinal stenosis and again noted that very high grade stenosis at L4-5 and
moderate stenosis at L3-4 were causing right-sided root compromise. Dr. Faust indicated that
appellant had experienced months of progressively worsening pain and weakness without any
treatments or approvals through workers’ compensation. He further indicated that there was no
prior history of low back pain or pathology prior to her injury. Dr. Faust opined that, appellant’s
lumbar symptoms were causally related to repetitive motion from work and the described injury
sustained after reaching/sorting mail on a conveyer belt. Dr. Faust also maintained that despite
moderate narrowing, which was intermittently symptomatic, appellant managed to cope with her
lumbar spine; however, from the moment she bent forward during the course of a routine day
4

performing routine activities she felt a pop that was a herniation/protrusion with some strain
component that led to abrupt onset and sustained symptoms since that time. He concluded that
there was no claim by him that the repetition was the problem, but instead a well-deﬁned single
injury that aggravated a quiescent condition of stenosis.
In additional Form CA-17 reports dated January 15 and February 26, 2019, Dr. Faust
continued to repeat appellant’s history of injury, and his prior lumbar diagnoses and opinions on
causal relationship and her disability status.
OWCP, in an April 12, 2019 decision, denied modification of its December 19, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 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. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition;6 (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed;7 and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. 8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

S.C., Docket No. 18-1242 (issued March 13, 2019); Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52
ECAB 468 (2001).
7

B.K., Docket No. 19-0829 (issued September 25, 2019); Michael R. Shaffer, 55 ECAB 386 (2004).

8

C.M., Docket No. 18-1516 (issued May 8, 2019); Beverly A. Spencer, 55 ECAB 501 (2004).

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medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
Appellant submitted a series of reports from Dr. Faust. In a July 11, 2018 Form CA-20
report, Dr. Faust checked a box marked “yes” indicating that appellant’s diagnosed conditions of
lumbar radiculopathy and lumbar spinal stenosis were caused or aggravated by the employment
activity. He noted that she had developed radicular back pain while unloading mail from a
conveyor belt. However, Dr. Faust did not provide the necessary medical rationale explaining how
unloading mail from a conveyor belt caused or aggravated appellant’s conditions. The Board has
held that a checkmark or affirmative notation in response to a form question on causal relationship
is insufficient, without medical rationale, to establish causal relationship. 10 Dr. Faust’s July 11,
2018 report is thus insufficient to establish appellant’s burden of proof.
In Form CA-17 reports dated July 11, 2018 to February 26, 2019, Dr. Faust diagnosed
lumbar radiculopathy, degenerative lumbar spinal stenosis, and lumbar herniated nucleus
pulposus, stenosis due to appellant’s occupational disease involving repetitive motion of her
back/leg. The Board finds that, although he supported causal relationship, he did not provide
medical rationale explaining the basis of his conclusory opinion regarding the causal relationship
between appellant’s lumbar conditions and the accepted factors of her employment. 11 Dr. Faust
did not explain the process by which repetitive use of her back and leg at work would have caused
the diagnosed conditions. As the opinion of appellant’s physician regarding causal relationship
was conclusory and unexplained, it was insufficient to meet appellant’s burden of proof.
Dr. Faust’s reports are thus insufficient to establish her claim.12
Dr. Faust, in a January 15, 2019 report, opined that appellant’s lumbar radiculopathy and
degenerative lumbar spinal stenosis were due to her repetitive motion from work, reaching and
sorting mail on a conveyer belt on May 31, 2018. He, however, concluded that the May 31, 2018
work incident aggravated her quiescent condition of stenosis. Dr. Faust attributed appellant’s back
injury to a traumatic incident from a single occurrence on May 31, 2018, rather than an

9

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

10

See H.A., Docket No. 18-1466 (issued August 23, 2019); K.R., Docket No. 18-0711 (issued September 6, 2018);
S.G., Docket No. 19-0041 (issued May 2, 2019); K.T., Docket No. 15-1758 (issued May 24, 2016).
11

See K.B., Docket No. 19-0411 (issued July 19, 2019); S.S., Docket No. 17-1256 (issued December 13, 2018);
T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
12

See K.B., id.; S.S., id.; J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden
of proof in establishing a work-related right wrist condition where his physician provided only conclusory support for
causal relationship. As the opinion of appellant’s physician regarding causal relationship was conclusory and
unexplained, it was insufficient to meet appellant’s burden of proof).

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occupational injury, as alleged by appellant in her claim. 13 Moreover, he again failed to explain
how repetitive motion, including reaching and sorting mail, would have caused or aggravated the
diagnosed condition. For the reasons set forth above, the Board finds that his January 15, 2019
report is insufficient to meet appellant’s burden of proof.14
Dr. Faust’s remaining report dated July 10, 2018 is of no probative value because it did not
relate appellant’s lumbar diagnoses to the accepted employment factors. Medical evidence that
does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship. 15 For the reasons stated, the Board finds that
Dr. Faust’s July 10, 2018 report is insufficient to establish appellant’s burden of proof.
Appellant also submitted Dr. Blatti’s June 25, 2018 report. Dr. Blatti noted appellant’s
preexisting history of degenerative joint disease and reviewed the May 31, 2018 lumbar spine MRI
scan. He believed that her employment contributed to her worsening back pain and disability from
work. However, Dr. Blatti failed to offer medical rationale explaining how appellant’s lumbar
degenerative joint disease was aggravated by the accepted employment factors.16 The need for
rationale is particularly important as he indicated that appellant had a prior history of a lumbar
condition.17 For these reasons, the Board finds that Dr. Blatti’s June 25, 2018 report is insufficient
to meet appellant’s burden of proof.
The reports of Dr. Manaqibwala and Dr. Yadegar, which addressed appellant’s lumbar
conditions and disability from work, are of no probative value on the issue of causal relationship .
Neither physician offered a medical opinion finding that her conditions and resultant disability
were due to the accepted employment factors. As noted above, the Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s disability/condit ion
is of no probative value on the issue of causal relationship.18 The Board finds, therefore, that the
reports of Dr. Manaqibwala and Dr. Yadegar are insufficient to establish appellant’s burden of
proof.
Further, Dr. Duncan’s May 31, 2018 lumbar spine MRI scan report is also insufficient to
establish the claim. The Board has held that diagnostic test reports lack probative value as they do

13

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
14

See W.P., Docket No. 15-1354 (issued October 20, 2015); J.A., Docket No. 14-1443 (issued March 11, 2015).

15
See K.B., supra note 11; S.G., supra note 10; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket
No. 17-1549 (issued July 6, 2018) (medical evidence that does not offer an opinion regarding the cause of an employee
s condition is of no probative value on the issue of causal relationship).
16

Supra note 11.

17

See K.B., supra note 11; S.G., supra note 10; M.B., Docket No. 17-0688 (issued March 15, 2018).

18

Supra note 15.

7

not provide an opinion on causal relationship between the accepted employment factor(s) and a
diagnosed condition.19
Lastly, the progress note from Ms. Flaum, a physician assistant, has no probative medical
value in establishing appellant’s claim as a physician assistant is not considered a “physician” as
defined under FECA. 20 As such, this evidence is also insufficient to meet appellant’s burden of
proof.
Because appellant has not provided sufficiently rationalized medical evidence to establish
that her lumbar conditions were causally related to the accepted factors of her federal employment,
the Board finds that she has not met her burden of proof to establish her occupational disease claim.
On appeal appellant contends that her back condition and resultant disability from work
are due to her federal employment duties. However, for the foregoing reasons, the Board finds
that the medical evidence of record is insufficient to establish that appellant sustained a workrelated back condition causally related to the accepted factors of her federal employment.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.

19

See R.M., Docket No. 18-0976 (issued January 3, 2019); C.D., Docket No. 17-2011 (issued November 6, 2018).

20

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8101(2); P.H., Docket No. 19-0119 (issued July 5, 2019); T.K., Docket No. 19-0055 (issued May 2, 2019);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, and physical
therapists are not competent to render a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441
(2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be
resolved through the submission of probative medical evidence from a physician).

8

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2019 and December 19, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 29, 2019
Washington, DC

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

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

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

9


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

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

Docket No. 15-0959
Issued: July 14, 2015

Case Submitted on the Record

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

JURISDICTION
On March 25, 2015 appellant filed a timely appeal from an October 21, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a back injury in the performance of duty on October 1, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2013 appellant, then a 55-year-old mail processing clerk, filed a Form
CA-1 claim for traumatic injury alleging that she sustained a back injury on October 1, 2013,2
while lifting a tray of mail. She did not stop work. In a brief statement dated October 22, 2013,
appellant indicated that she was lifting a tray of mail to put on her ledge and she twisted or
sprained a muscle in her back.
Appellant submitted an October 16, 2013 report from Dr. Daniel Ignacio, a Boardcertified physiatrist, who stated that appellant was seen for “medical conditions that developed”
while appellant was at work on October 1, 2013.3 Dr. Ignacio reported that her job required
repetitive movements such as lifting, bending, pushing, pulling, and reaching. He stated that
appellant had developed pain along the neck, left shoulder, back, and left hip as she was
performing her job duties. In addition, Dr. Ignacio stated that the pain worsened when she
performed repetitive job activities. He provided results on examination and diagnosed: acute
cervical, left shoulder, lumbar, and left hip strains, and acute lumbar disc syndrome. Dr. Ignacio
stated that appellant should continue on light duty. Appellant also submitted duty status reports
(Form CA-17) from Dr. Ignacio dated November 20 and December 17, 2013. Dr. Ignacio
indicated that appellant could work with restrictions.
In a letter dated February 14, 2014, OWCP requested that appellant submit additional
evidence in support of her claim. It advised her that the evidence submitted was insufficient to
establish an incident as alleged, nor to support an employment injury occurred. On March 10,
2014 appellant submitted a Form CA-17 duty status report from Dr. Ignacio indicating that she
could work light duty.
By decision dated March 24, 2014, OWCP denied the claim for compensation. It stated
that appellant did not establish the factual element of the claim, as her brief description of the
incident was insufficient.
Appellant requested a review of the written record. She submitted a May 12, 2014
statement that provided additional description of the alleged employment incident on
October 1, 2013. According to appellant, she was lifting a 20-pound tray from the top stack, and
as she lifted the cardboard tray, it gave way. In an attempt to save it, she felt a sharp pain in her
lower back. Appellant stated that she also had pain down her left leg.
With respect to medical evidence, appellant submitted additional reports from
Dr. Ignacio. In a November 20, 2013 report, Dr. Ignacio noted that appellant had developed pain
along the neck, left shoulder, back, and left hip at work on October 1, 2013. He provided results
on examination and diagnosed acute cervical, left shoulder, lumbar, and left hip strains, and

2

The supervisor’s report on the reverse of the claim form reports that notice was received on January 31, 2014,
and the record indicates that OWCP received the claim on February 7, 2014.
3

Dr. Ignacio reports the date of injury as October 1, 2012. A second medical report dated October 16, 2013
shows the date of injury as October 1, 2013.

2

acute lumbar disc syndrome. In a report dated December 17, 2013, Dr. Ignacio noted that
appellant was seen for work-related injuries and was on light duty.
Dr. Ignacio provided a history in a February 27, 2014 report that appellant’s job involved
a lot of reaching, bending, pulling, and pushing. He stated that appellant injured her back while
lifting two heavy trays of mail on October 1, 2013. Dr. Ignacio provided results on examination
and again diagnosed acute cervical, left shoulder, lumbar, and left hip strains, with lumbar facet
dysfunction and acute lumbar disc syndrome.
In a report dated April 2, 2014, Dr. Ignacio provided a history that appellant was “lifting
tray of mails” on October 1, 2013 and had acute pain in the back, neck, and left hip. Following
results on examination, he diagnosed chronic cervical, left shoulder, lumbar, and left hip strains,
and chronic lumbar disc syndrome. Dr. Ignacio also diagnosed chronic pain syndrome. He
stated that the mechanism of injury was a flexion-rotational strain to the cervical and lumbar
spine and left hip causing injury to the supporting structure of the spine. Dr. Ignacio stated that
appellant continued to suffer with the above-mentioned conditions sustained while in the
performance of duty on October 1, 2013.
Appellant was also seen by Dr. Ignacio on May 8, 2014. In a report of that date,
Dr. Ignacio provided results on examination. The diagnoses were acute cervical, left shoulder,
left hip, lumbar, and facet lumbar strains, with acute lumbar disc syndrome. In a June 5, 2014
report, Dr. Ignacio noted that a cervical magnetic resonance imaging (MRI) scan showed disc
narrowing and disc protrusion at C5-6. On July 2, 2014 he diagnosed chronic cervical strain
syndrome, chronic left shoulder and lumbar strains, and chronic lumbar disc syndrome and
chronic cervical pain syndrome. Dr. Ignacio stated that appellant sustained injuries at work on
October 1, 2013.
By decision dated October 21, 2014, an OWCP hearing representative affirmed the denial
of the claim. She found the evidence did establish that appellant lifted a tray of mail. The
hearing representative also found that the medical evidence from Dr. Ignacio contained
inconsistent and inaccurate histories and were not sufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.7
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by sound
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
In the present case, appellant alleged that she sustained an injury on October 1, 2013
when she lifted a tray of mail. In her May 12, 2014 statement, she described an incident where
when lifting a 20-pound tray of mail, the cardboard tray gave way, and in her attempt to save the
tray she felt a pain in her back. The hearing representative accepted that an incident occurred in
the performance of duty on October 1, 2013.
The issue, therefore, is whether the medical evidence is sufficient to establish a diagnosed
injury causally related to the employment incident. Although appellant has submitted a number
of reports from Dr. Ignacio, they are of diminished probative value to the issue presented. It is
not the number of reports submitted, but the probative value as determined by the accuracy and
completeness of the physician’s knowledge of the facts and history, and the soundness of the
analysis and medical rationale provided in support of the opinion.9
In this regard, Dr. Ignacio did not provide reports with an accurate and complete history
of injury. In his October 16, 2013 report, he referred to the performance of job duties that
included lifting, bending, pushing, pulling, and reaching. Dr. Ignacio did not discuss the specific
October 1, 2013 incident described by appellant which serves as the basis for her claim. In his
February 27, 2014 report, he again referred to repetitive job duties, and then stated that appellant
had lifted two heavy trays of mail. Appellant did not describe lifting two heavy trays of mail in
her factual statement. She referred to a single 20-pound tray that gave way. In his April 2, 2014
report, Dr. Ignacio briefly notes that appellant lifted trays of mail, without further explanation.
He mentions a mechanism of injury as involving a rotational strain, but he did not provide an
accurate history of the October 1, 2013 incident, or discuss the medical history. Dr. Ignacio’s
prior reports, which noted general repetitive job activity, referred inaccurately to lifting two
heavy trays.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See S.D., Docket No. 14-1855 (issued January 7, 2015).

4

The Board finds that Dr. Ignacio did not provide a complete and accurate history with
respect to the claimed incident. In none of his reports does Dr. Ignacio provide a history that
demonstrates his understanding of the October 1, 2013 employment incident as alleged by
appellant. This lack of an accurate background reduces the probative value of his reports to the
issue presented.
In addition, a medical opinion must be supported by sufficient medical reasoning.
Dr. Ignacio provided a number of diagnoses, including acute cervical, left shoulder, lumbar, and
left hip strains, and acute lumbar disc syndrome. In his April 2 and July 2, 2014 reports, he
diagnosed chronic conditions, including chronic cervical, left shoulder, lumbar, and left hip
strains, chronic lumbar disc syndrome, and chronic pain syndrome. Dr. Ignacio appears to relate
all of these conditions to appellant’s employment duties, without providing specific explanation.
To establish a specific condition as causally related to the employment incident, there must be
medical rationale explaining the pathophysiological process by which the incident caused the
diagnosed condition.10 Dr. Ignacio did not provide a rationalized medical opinion in this case. It
is appellant’s burden of proof to establish the claim for compensation, and she did not meet her
burden of proof in this case.
On appeal, appellant states that she believes the evidence from Dr. Ignacio is sufficient.
She indicates that her claim was denied because of clerical errors in Dr. Ignacio’s reports, such
as noting the wrong year for the date of injury on his initial report. The deficiencies in the
reports from Dr. Ignacio are not the result of clerical errors. As noted above, Dr. Ignacio did not
provide a clear and accurate history of the October 1, 2013 employment incident, or provide a
rationalized medical opinion, as to causal relationship between a diagnosed condition and the
employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant did not meet her burden of proof to establish that she sustained
a back injury in the performance of duty on October 1, 2013.

10

See J.P., Docket No. 14-1966 (issued January 23, 2015); M.D., Docket No. 14-1498 (issued January 8, 2015);
C.T., Docket No. 11-625 (issued October 17, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2014 is affirmed.
Issued: July 14, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES JR. HOSPITAL, Hines, IL,
Employer
__________________________________________

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

Docket No. 10-1587
Issued: February 11, 2011

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 May 27, 2010 appellant filed a timely appeal from the December 30, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the Office’s denial. The last merit decision, dated
July 29, 2009, was issued more than 180 days prior to the filing of this appeal and therefore the
Board does not have jurisdiction over the merits of this case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
pursuant to section 8128(a) of the Federal Employees’ Compensation Act.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On January 5, 2006 appellant, then a 35-year-old pharmacy technician, sustained a right
hand injury in the performance of duty when she pulled extremely hard to open a malfunctioning
door. The Office accepted her claim for acquired trigger finger, right middle and de Quervain’s
tenosynovitis of the right wrist.2 On February 27, 2008 it issued a schedule award for 10 percent
impairment of appellant’s right upper extremity based on right middle finger range of motion and
pain. On February 3, 2009 the Office issued an additional schedule award of 3 percent for pain,
for a total right upper extremity impairment of 13 percent.
Appellant filed a request for reconsideration. In a decision dated July 29, 2009, the
Office reviewed the merits of her claim and denied modification of its prior decision. It had
asked appellant to submit a report from her physician providing exact goniometric measurements
of flexion and extension of each joint in the right middle finger.
Discussing the
metacarpophalangeal joint in the right long finger, her physician reported a “10-degree flexion
contracture measured with a goniometer.” A second opinion physician found no significant
flexion contracture of the right middle finger or otherwise. The Office found that the weight of
the evidence rested with the second opinion physician, who provided a well-rationalized report
based on objective physical findings and a review of the evidence. It noted that appellant’s
physician did not follow the recommendation to provide measurements of each joint of the right
middle finger using a goniometer to confirm his findings.
On October 2, 2009 appellant again requested reconsideration. She stated that her new
physician was refusing to examine or do anything with her hand, as he did not perform any of the
surgeries. Appellant stated that the second opinion physician did not examine her hand and did
not ask any questions about her pain or limitations. She also stated that the requirement to obtain
a private physician to collect and submit the necessary information was causing her undue
financial hardship. Appellant requested reconsideration of the percentage disability the Office
awarded.
On October 1, 2009 Dr. Michael Bednar, an orthopedic hand surgeon, reported a lack of
approximately 15 degrees extension in the metacarpophalangeal joint of appellant’s right middle
finger with tenderness on palpation over the region of the A-1 pulley. He prescribed a new
tennis elbow band, therapy to relieve symptoms of lateral epicondylitis and stretching the
metacarpophalangeal joint.
The October 29, 2009 therapy showed very minimal change in appellant’s pain.
Dr. Bednar prescribed an injection in the A-1 pulley region. On December 1, 2009 he noted that
this helped with appellant’s hand pain, but she continued to experience pain in her forearm.
Appellant wished to proceed with surgery at the radial tunnel.
In a decision dated December 30, 2009, the Office denied appellant’s request for
reconsideration. It found that Dr. Bednar’s medical reports did not address the measurements for
a schedule award or the permanent impairment of appellant’s right upper extremity. The Office
2

The Office may also have accepted appellant’s case for right lateral epicondylitis.

2

concluded that appellant’s request for reconsideration was insufficient to warrant a merit review
of her case.
On appeal, appellant argues that her condition continues to deteriorate and that she now
requires additional surgery. She describes the trouble she is having with her right hand, elbow
and shoulder.
LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.3 The employee shall exercise this right through a request to
the district Office.4
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.6 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the request for reconsideration without reopening the case for a review on the merits.7
ANALYSIS
The only decision the Board may review is the Office’s December 30, 2009 decision
denying appellant’s request for reconsideration. The issue, therefore, is whether the Office
properly denied her request. The question is whether appellant’s request for reconsideration
meets at least one of the three standards for obtaining a merit review of her case.
Appellant did not attempt to show that the Office erroneously applied or interpreted a
specific point of law. She did not advance a relevant legal argument not previously considered

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605.

5

Id. at § 10.606.

6

Id. at § 10.607(a).

7

Id. at § 10.608.

3

by the Office.8 Appellant did not submit with her request any evidence that constituted relevant
and pertinent new evidence not previously considered by the Office. The Office later received
several reports from Dr. Bednar, her hand surgeon, but these reports were not relevant and
pertinent to whether she should receive an increased schedule award. Dr. Bednar did not rate the
impairment of appellant’s right upper extremity. He did not attempt to follow the protocols of
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment. Dr. Bednar’s single recorded measurement of 15 degrees lack of extension in the
metacarpophalangeal joint of the right middle finger does not support a finding of more than 13
percent impairment of her right upper extremity.
Because appellant’s request for reconsideration does not meet at least one of the
standards for obtaining a merit review of her case, the Board finds that the Office properly
denied her request. The Board will affirm the Office’s December 30, 2009 decision.
Appellant argues on appeal that she continues to have trouble with her right upper
extremity, but complaints alone are not enough to justify a reopening of her case. Her physician
would have to provide the Office with the goniometric measurements previously requested of
each joint in the right middle finger, in accordance with the sixth edition of the A.M.A., Guides,
together with an impairment rating following the procedures of the A.M.A., Guides and showing
that appellant has more than 13 percent impairment of her right upper extremity causally related
to her January 5, 2006 employment injury.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

8

There appears to be no basis for appellant’s assertion that the second opinion physician did not examine her
hand. The physician’s findings on physical examination, conducted in the presence of a registered nurse, and his
analysis show otherwise.

4

ORDER
IT IS HEREBY ORDERED THAT the December 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2011
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

5


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

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

Docket No. 15-1623
Issued: April 15, 2016

Case Submitted on the Record

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

JURISDICTION
On July 27, 2015 appellant, through counsel, filed a timely appeal from a May 21, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her lower back
conditions are causally related to a December 21, 2009 employment incident.
On appeal, counsel contends that OWCP’s decision was contrary to facts and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 On March 29, 2011 appellant, then a
35-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on
December 21, 2009 she injured her lower back due to a slip and fall on snow-covered wooden
stairs while in the performance of duty. In a decision dated March 6, 2014, the Board affirmed a
December 26, 2012 OWCP decision finding that appellant did not meet her burden of proof to
establish lower back conditions causally related to a December 21, 2009 employment incident.
The Board found that the medical evidence of record was insufficient to establish causal
relationship. The facts and circumstances of the case, as set forth in the prior decision, are
incorporated herein by reference.
On August 28, 2014 appellant, through counsel, requested reconsideration and submitted
an August 10, 2014 report from Dr. Edward Goldberg, a Board-certified orthopedic surgeon,
who diagnosed left-sided nucleus pulposus at L5-S1. Dr. Goldberg reported that appellant was
involved in a work-related accident on December 21, 2009 when she slipped and fell on a
staircase landing directly on her back. On September 23, 2010 he performed a left L5-S1
hemilaminotomy and discectomy for herniated nucleus pulposus to the left at L5-S1. Appellant
underwent postoperative rehabilitation, but developed progressive low back pain and some
intermittent left leg radicular pain. Dr. Goldberg further reported that electromyography (EMG)
and nerve conduction velocity (NCV) studies performed on June 20, 2011 revealed a left S1
radiculopathy. He opined that this was due to the original herniation compressing the left S1
nerve root. A postoperative magnetic resonance imaging (MRI) scan of the lumbar spine on
June 20, 2011 revealed postoperative changes at the discectomy set on the left at L5-S1 as well
as progressive disc degeneration at L5-S1 with a broad-based disc protrusion. On September 27,
2011 Dr. Goldberg performed a posterolateral instrumented fusion surgery at L5-S1 to address
the degenerative disc, which occurred after the discectomy secondary to the herniation. He
indicated that in approximately 10 percent of well-performed surgical discectomies, a disc can
continue to degenerate resulting in degenerative changes, axial back pain, and the need for
additional fusion surgery. As of June 25, 2012 appellant was released to work with restrictions
at a sedentary to light-duty level, lifting 10 to 15 pounds, and changing positions from sitting to
standing to walking every 30 minutes as needed. Dr. Goldberg opined that appellant’s lumbar
condition and two surgeries were causally related to the December 21, 2009 employment
incident.
Appellant also provided a report dated May 9, 2014 from Dr. Mark Sokolowski, an
orthopedic surgeon and associate of Dr. Goldberg. Dr. Sokolowski noted that a “slip and fall
down stairs results in a flexion moment to the lumbar spine (increased intradiscal pressure
anteriorly and stretch of the facet joint capsule posteriorly) followed by an extension moment to
the lumbar spine (increased tension upon the disc anteriorly and increased loading of the facet
joints posteriorly).” He reported that a “traumatic increase in intradiscal pressure is a known
cause of traumatic disc herniation” and explained that disc herniations most commonly resulted
in radicular symptoms, such as left leg pain, and facet injuries most commonly resulting in back
pain. Dr. Sokolowski found that both conditions were present in appellant upon evaluation by
Dr. Goldberg and were noted by Dr. Goldberg to have occurred after slipping and falling at
2

Docket No. 13-0618 (issued March 6, 2014).

2

work. He concluded that appellant’s December 21, 2009 employment incident caused her
lumbar pain and lumbar radiculopathy based on the temporal correlation provided by appellant,
the onset of symptoms, and consistent examination and test findings.
By decision dated May 21, 2015, OWCP denied modification of the prior decision
finding the medical evidence submitted was insufficient to establish a causal relationship
between appellant’s lumbar conditions and the December 21, 2009 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, and that any
disability or medical condition for which compensation is claimed is causally related to the
employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6
ANALYSIS
OWCP has accepted that the employment incident of December 21, 2009 occurred at the
time, place, and in the manner alleged. On appeal, counsel contends that OWCP’s decision was
contrary to fact and law.
3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008).

5

Id.

6

Id.

3

The Board finds the case not in posture for decision on the issue of causal relationship.
In support of her August 28, 2014 reconsideration request, appellant submitted an
August 10, 2014 report from Dr. Goldberg who diagnosed left-sided nucleus pulposus at L5-S1
and asserted that appellant was involved in a work-related accident on December 21, 2009 when
she slipped and fell on a staircase landing directly on her back. On September 23, 2010
Dr. Goldberg performed at left L5-S1 hemilaminotomy and discectomy for herniated nucleus
pulposus to the left an L5-S1. He noted that EMG and NCV studies performed on June 20, 2011
revealed a left S1 radiculopathy. Dr. Goldberg opined that this was due to the original herniation
compressing the left S1 nerve root. On September 27, 2011 he performed a posterolateral
instrumented fusion surgery at L5-S1 to address the degenerative disc, which occurred after the
discectomy secondary to the herniation. Dr. Goldberg explained that in approximately 10
percent of well-performed surgical discectomies, a disc can continue to degenerate resulting in
degenerative changes, axial back pain, and the need for additional fusion surgery. As of June 25,
2012 appellant was released to work with restrictions at a sedentary to light-duty level, lifting 10
to 15 pounds, and changing positions from sitting to standing to walking every 30 minutes as
needed. Dr. Goldberg opined that her lumbar condition and two surgeries were causally related
to the December 21, 2009 employment incident.
Appellant also provided a report dated May 9, 2014 from Dr. Goldberg’s medical
associate Dr. Sokolowski who explained that a “slip and fall down stairs results in a flexion
moment to the lumbar spine (increased intradiscal pressure anteriorly and stretch of the facet
joint capsule posteriorly) followed by an extension moment to the lumbar spine (increased
tension upon the disc anteriorly and increased loading of the facet joints posteriorly).”
Dr. Sokolowski asserted that a “traumatic increase in intradiscal pressure is a known cause of
traumatic disc herniation” and explained that disc herniations most commonly resulted in
radicular symptoms, such as left leg pain, and facet injuries most commonly resulting in back
pain. He found that both conditions were present in appellant upon evaluation by Dr. Goldberg
and were noted by Dr. Goldberg to have occurred after slipping and falling at work.
Dr. Sokolowski concluded that appellant’s December 21, 2009 employment incident caused her
lumbar pain and lumbar radiculopathy based on the temporal correlation provided by appellant,
the onset of symptoms, and consistent examination and test findings.
The Board finds that, while the reports from Drs. Goldberg and Sokolowski are not
completely rationalized, they are consistent in finding that appellant slipped and fell down a
staircase in the performance of duty on December 21, 2009 and the evidence now explains the
process by which such a fall can cause a spinal injury. These reports are not contradicted by any
substantial medical or factual evidence of record.7 While the reports are insufficient to meet
appellant’s burden of proof to establish a claim, they raise an inference of causal relationship
between the claimed condition and the December 21, 2009 incident, sufficient to require further
medical development by OWCP.8

7

See E.J., Docket No. 09-1481 (issued February 19, 2010).

8

Id.; see also John J. Carlone, 41 ECAB 354 (1989).

4

It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.9
On remand, OWCP should refer appellant, together with the case record and a statement
of accepted facts, to an appropriate specialist for an examination to determine whether the
December 21, 2009 employment incident caused or aggravated new and/or preexisting lower
back conditions and whether it contributed to the need for surgery.10 After such further
development as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision on the issue of causal
relationship.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: April 15, 2016
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

9

See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

10

See G.B., Docket No. 09-1768 (issued May 17, 2010).

5


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

)
)
)
)
)
)
)
)

Appearances:
Kimberly A. Slimbaugh, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1401
Issued: March 23, 2018

Case Submitted on the Record

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

JURISDICTION
On June 12, 2017 appellant, through counsel, filed a timely appeal from a December 20,
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 met her burden of proof to establish a recurrence of disability
from October 1, 2015 to March 21, 2016 due to her accepted employment injuries.
FACTUAL HISTORY
On June 2, 2015 appellant, then a 58-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging left trapezius muscle spasm, left subacromial impingement,
and left rotator cuff tear resulting from the performance of her federal duties. She attributed her
conditions to lifting heavy mail and reaching out the window of her postal vehicle to place the mail
in mailboxes that were hard to reach due to snowbanks. Appellant first became aware of her
conditions and their relationship to her federal employment on February 3, 2015. She stopped
work on February 27, 2015 and returned to regular-duty work effective April 8, 2015.
On September 11, 2015 OWCP accepted appellant’s claim for left shoulder impingement.
In a September 30, 2015 medical report, Dr. Bradley S. Raphael, an attending orthopedic
surgeon, noted a history that seven months ago appellant sustained a left shoulder injury at work.
He discussed physical examination findings and diagnosed subacromial impingement.
Dr. Raphael requested authorization to perform an arthroscopy of the left shoulder for subacromial
decompression and debridement because appellant’s symptoms had progressed and failed to
respond to conservative measures. He advised that the incident described by her was a competent
medical cause of her left shoulder injury. Dr. Raphael further advised that appellant’s history and
complaints were consistent with the history of the injury/illness. He concluded that she was
temporarily totally disabled. Dr. Raphael noted that appellant was not working at that time and
that she would remain off work until further notice.
On October 6, 2015 appellant filed a notice of recurrence of disability (Form CA-2a)
commencing September 29, 2015. She claimed that she was limited in her ability to lift any weight
with her left arm. Appellant described pain, swelling, tenderness, and weakness due to a torn
rotator cuff. She noted her medical treatment and maintained that she remained symptomatic.
Appellant asserted that her current condition was a continuation of her original injury. She related
that she tried to continue working through her pain, however, her shoulder condition progressively
worsened. On the claim form the employing establishment indicated that appellant had returned
to full-time, regular-duty work on April 8, 2015. It reported that she stopped work on
October 1, 2015.
Appellant filed a series of claims for compensation, CA-7 forms, for leave without pay
(LWOP) for the period October 1 to 30, 2015.
In an October 13, 2015 duty status report (Form CA-17), Dr. Raphael listed February 27,
2015 as the date of injury. He reported examination findings and diagnosed left shoulder
subacromial impingement due to injury. Dr. Raphael noted that appellant had not been advised to
resume her regular work. In an October 22, 2015 work capacity evaluation (OWCP-5c), he
advised that she was unable to perform her usual job or work eight hours a day with restrictions

2

due to left shoulder pain, progression of symptoms, and failure to improve with conservative
measures.
On November 3, 2015 OWCP received a request for authorization to perform left shoulder
arthroscopic surgery.
OWCP, by development letter dated November 4, 2015, advised appellant of the
deficiencies of her recurrence claim and afforded her 30 days to submit additional medical and
factual evidence.
Appellant filed a CA-7 form for leave buy back compensation for the period February 28
to April 7, 2016.
Appellant filed additional CA-7 forms for LWOP compensation from October 31 to
December 25, 2015.
On November 23, 2015 appellant responded to OWCP’s development questionnaire. She
listed the physical requirements of her work duties and noted that her shoulder injury had affected
her job duties. Appellant claimed that her symptoms had not responded to conservative measures.
She also claimed that she had not sustained or incurred any other injuries or illness since her
original injury. Appellant related that she was unable to participate in any activities outside of
work due to her shoulder injury.
Appellant submitted additional reports dated October 26, November 16 and 18, and
December 11, 2015 from Dr. Raphael. Dr. Raphael reiterated her history of injury, discussed
examination findings, and restated his prior assessment of subacromial impingement as well as his
prior opinion that her condition was work related and that she was temporarily totally disabled
from work. He noted that appellant’s mail carrier duties involved using her left hand to drive a
route in her own personal vehicle and twisting, turning, pushing, and reaching to put mail into
mailboxes, and handling up to 70 pounds of parcels. Dr. Raphael advised that her left shoulder
condition had worsened due to her job duties and that she did not sustain a new injury. He related
that appellant suffered a partial supraspinatus and infraspinatus tear due to continuous twisting,
turning, and reaching with her left arm. Dr. Raphael maintained that it was well known and
supported by evidenced-based data that repetitive use of the arms, especially at or above shoulder
level, may cause fatigue and damage to the rotator cuff tendons; if the rate of tissue breakdown
exceeded the rate of tissue healing, tendon degeneration and tear may occur. He noted that
appellant’s job duties required exactly that, repetitive use of the arms, etc. Dr. Raphael again
recommended left shoulder surgery.
By decision dated January 14, 2016, OWCP denied appellant’s recurrence claim because
the medical evidence of record failed to establish that she was disabled due to a material
change/worsening of her accepted work-related condition.
OWCP received additional reports dated December 16, 2015 and January 16 and 22, 2016
from Dr. Raphael in which he continued to diagnose subacromial impingement and to opine that
appellant’s condition was work related and that she was temporarily totally disabled from work.
Dr. Raphael noted her repetitive work duties and related that repetitive motion can cause rotator
cuff pathology and in extreme cases, a rotator cuff tear. He believed that appellant’s pain was
3

caused and worsened by repetitive motion at work. Dr. Raphael continued to recommended left
shoulder arthroscopic surgery.3 On January 15, 2016 he again prescribed physical therapy to treat
her left shoulder condition.
Appellant filed additional CA-7 forms for LWOP for the period December 26, 2015 to
April 7, 2016.
On February 26, 2016 appellant requested an oral hearing before an OWCP hearing
representative regarding the January 14, 2016 decision.
OWCP received various medical records, which included a March 7, 2016 report from
Dr. Eileen Stone, a Board-certified internist. Dr. Stone conducted a preoperative evaluation. She
noted a history of the accepted work-related condition and appellant’s medical treatment.
Dr. Stone examined appellant and assessed sprain of the left rotator cuff capsule, initial encounter,
essential (primary) hypertension, and encounter for other preprocedural examination.
Appellant underwent authorized left shoulder surgery. Hospital records included a
March 22, 2016 operative report in which Dr. Raphael noted preoperative and postoperative
diagnoses as left shoulder rotator cuff tear, left shoulder impingement, and left shoulder
acromioclavicular joint arthrosis. He performed diagnostic arthroscopy, rotator cuff repair,
subacromial decompression, extensive debridement, and distal clavicle excision of the left
shoulder. In an April 11, 2016 form OWCP-5c, Dr. Raphael advised that appellant was unable to
perform her usual job or work eight hours a day as she was status post left shoulder arthroscopic
surgery. He determined that she had not reached maximum medical improvement. On April 13,
2016 Dr. Raphael reported that appellant was doing well three weeks status post left rotator cuff
repair although she still had some stiffness and discomfort. He reiterated his prior left shoulder
diagnosis and opinions on causal relationship and her disability status.
On April 15, 2016 OWCP informed appellant that her recurrence claim required further
development due to a fall she sustained on January 15, 2015.
OWCP, by letter dated April 15, 2016, advised appellant that the medical evidence
regarding her March 22, 2016 left shoulder surgery was insufficient to establish her recurrence
claim. It afforded her 30 days to submit additional medical and factual evidence.
Dr. Raphael, in reports dated March 14 to July 5, 2016, discussed examination findings
and again assessed subacromial impingement, as well as partial nontraumatic tear of the left rotator
cuff. He restated his prior opinions on causal relationship and appellant’s disability status. On
April 13 and July 14, 2016 Dr. Raphael ordered physical therapy to treat her left shoulder
conditions.
Reports and daily notes from appellant’s physical therapists addressed her treatment from
April 19 to June 30, 2016.

3

On February 16, 2016 OWCP authorized left shoulder arthroscopic surgery.

4

By decision dated August 2, 2016 and reissued on August 8, 2016, OWCP accepted
appellant’s claim for unspecified rotator cuff tear or rupture of the left shoulder, not specified as
traumatic. It also accepted that she sustained a recurrence of disability beginning March 22, 2016
and paid her disability compensation effective that date. Appellant received wage-loss
compensation on the supplemental rolls as of March 22, 2016, and on the periodic rolls as of
September 18, 2016.
OWCP received daily notes from appellant’s physical therapists which addressed the
treatment of appellant’s left shoulder condition from July 16 to August 12, 2016.
In a July 27, 2016 letter, Dr. Raphael noted a history of appellant’s accepted injuries and
the medical treatment he had provided to her. He reiterated her work duties. Dr. Raphael restated
his September 30, 2015 findings, which included his opinion that since appellant’s symptoms had
progressed and failed to respond to conservative measures it was detrimental for her to continue
working at that time. He related that she did not have a new injury. Appellant’s symptoms
spontaneously worsened to a level of intensity that would cause greater harm if she continued to
work. Dr. Raphael pointed out that she fell in January 2016 and sustained a head injury that had
absolutely no effect or impact on her left shoulder injury. Therefore, he advised that appellant’s
continuous disability status was unrelated to her fall.
On August 2, 2016 Dr. Raphael examined appellant and reiterated his assessment of left
shoulder impingement syndrome. He continued to find that she was totally disabled for work and
reiterated his conclusion in an October 10, 2016 report and October 12, 2016 Form OWCP-5c.
By decision dated December 20, 2016, an OWCP hearing representative affirmed the
January 14, 2016 decision. She found that Dr. Raphael’s reports were insufficient to establish that
appellant’s disability commencing October 1, 2015 was due to a worsening of her accepted workrelated conditions.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition
which has resulted from a previous injury or illness without an intervening injury or new exposure
to the work environment that caused the illness.”4
When an appellant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of proof to establishing by the weight of the reliable, probative,
and substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is

4
20 C.F.R. § 10.5(y); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).

5

causally related to the employment injury and supports this conclusion with sound medical
reasoning.5
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence to establish
a recurrence of total disability from October 1, 2015 to March 21, 2016 due to her accepted work
injuries.
OWCP accepted that appellant sustained a work-related left shoulder impingement injury
in the performance of duty. Appellant returned to regular-duty work on April 8, 2015 and stopped
work on October 1, 2015. She claimed compensation for a recurrence of total disability
commencing on October 1, 2015. OWCP subsequently accepted that appellant sustained
unspecified rotator cuff tear or rupture of the left shoulder, not specified as traumatic. It also
accepted that she sustained a recurrence of disability as of March 22, 2016, the date she underwent
authorized left shoulder arthroscopic surgery.
In support of her recurrence claim, appellant submitted a series of reports from her
attending physician, Dr. Raphael, beginning on September 30, 2015. Dr. Raphael diagnosed left
shoulder subacromial impingement and partial nontraumatic tear of the left rotator cuff and
addressed her medical treatment. While he determined that the diagnosed conditions were due to
appellant’s work duties and that she was temporarily totally disabled, he failed to offer a medical
opinion specifically addressing whether her conditions and resultant disability were causally
related to the accepted employment-related injuries. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.6 A mere conclusion without the necessary rationale is insufficient to meet
a claimant’s burden of proof.7 Further, the Board notes that Dr. Raphael attributed appellant’s
need to remain off work as a way to prevent future injury. However, the Board has held that fear
of future injury is not compensable.8 For these reasons, these reports of Dr. Raphael are
insufficient to establish a recurrence of total disability or work-related disability during the claimed
period.
The remaining medical evidence of record is also insufficient to establish appellant’s claim
for recurrence of disability. The March 7, 2016 report of Dr. Stone provided preoperative
diagnoses, which included sprain of the left rotator cuff capsule, initial encounter. However, this
report did not offer a medical opinion addressing whether the diagnosed left shoulder conditions

5

Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

6

See R.B., Docket No. 17-0556 (issued June 2, 2017); J.D., Docket No. 16-0887 (issued November 4, 2016); L.M.,
Docket No. 16-0143 (issued February 19, 2016).
7

See E.L, Docket No. 17-1632 (January 3, 2018).

8

I.J., 59 ECAB 408 (2008).

6

and any resultant disability during the claimed period were causally related to the accepted
employment injuries.9
Appellant submitted physical therapy reports and notes dated March 5, 2015 to
June 30, 2016. Physical therapists, however, are not considered physicians as defined under FECA
and their reports have no probative value. Thus, these reports are insufficient to establish
appellant’s claim.10
It is appellant’s burden of proof to establish the claim for compensation. The Board finds
that appellant did not meet her burden of proof in this case.
On appeal counsel contends that the medical evidence supports that appellant had a
material change in her left shoulder condition that resulted in further disability beginning
September 29, 2015. As explained above, however, appellant has not submitted sufficient medical
evidence to establish her recurrence claim.
Alternatively, counsel contends on appeal that OWCP should have found that the evidence
supports a new injury. A subsequent injury, either an aggravation of the original injury or a new
injury, is compensable if it is the direct and natural result of a compensable primary injury.11
However, OWCP has not issued a decision on this aspect of the claim and it is not presently before
the Board on this appeal.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
recurrence of disability from October 1, 2015 to March 21, 2016 due to her accepted employment
injuries.

9

Supra note 6.

10

5 U.S.C. § 8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See E.W., Docket No. 16-1729 (issued May 12, 2017). Physical therapists are not considered physicians
as defined under FECA. R.U., Docket No. 17-0168 (issued January 9, 2018).
11

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

12

Patricia Hernandez, Docket No. 04-1408 (issued December 30, 2005); see also 20 C.F.R. §. 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2018
Washington, DC

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

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

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

8