United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, HIGHLAND HILLS
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 19-1768
Issued: March 24, 2020

Case Submitted on the Record

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

JURISDICTION
On August 26, 2019 appellant filed a timely appeal from a March 1, 2019 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 has met his burden of proof to establish a recurrence of the
need for medical treatment causally related to his accepted employment-related back conditions.
FACTUAL HISTORY
On December 17, 2014 appellant, then a 54-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that on December 2, 2014 he first realized that
his repetitive employment duties of pushing, pulling, lifting, standing, stooping, and bending for
1

5 U.S.C. § 8101 et seq.

13 years aggravated his preexisting lower back condition. On February 19, 2015 OWCP accepted
his claim for sprain of the lumbosacral spine and thoracic or lumbosacral neuritis or radiculitis.
Appellant returned to limited duty on March 13, 2015. He stopped work on May 17, 2016 due to
an accepted work-related left shoulder injury.2
On September 9, 2015 appellant’s attending physician, Dr. Leslie Benson, an emergency
medicine specialist, noted that appellant could work with restrictions of lifting no more than 10
pounds for one hour intermittently, sitting intermittently for six hours, standing intermittently for
two hours, walking intermittently for two hours, and performing no climbing, pulling, pushing, or
reaching above the shoulder. He diagnosed sprain of the lumbosacral joint ligament and thoracic
lumbosacral radiculitis. Dr. Benson noted that he examined appellant on a monthly basis to
determine his tolerance of working with restrictions.
In a report dated September 20, 2017, Dr. Gwenevere Williams, a Board-certified
physiatrist, examined appellant due to lumbar pain with stiffness.3 She diagnosed sprain of the
lumbosacral joint and acute lumbar radiculopathy. Dr. Williams noted that appellant’s current
condition was aggravated by standing, walking, bending, lifting, twisting, and sleeping.
On March 21, 2018 Jason Pickney, a nurse practitioner, examined appellant due to lumbar
pain with stiffness. Appellant also submitted notes from Arlene Henderson, a physical therapist.
On March 30, 2018 appellant filed a notice of recurrence (Form CA-2) alleging that on
September 15, 2017 he sustained a recurrence of a medical condition causally related to his
accepted back conditions. He alleged that he woke up with back pain and stiffness on
September 15, 2017. Appellant sought medical attention on September 20, 2017. He indicated
that he underwent left shoulder surgery on May 19, 2016 and right shoulder surgeries on May 7
and November 8, 2017. Appellant underwent physical therapy due to bilateral carpal tunnel
syndrome from August through October 2017.
On April 25, 2018 Dr. Lashondria Camp-Simpson, a Board-certified general surgeon,
examined appellant due to sprain of the lumbosacral joint ligament and acute lumbar
radiculopathy. She noted that he was not working due to his shoulder injuries. In a May 21, 2018
note, Dr. Camp-Simpson repeated her diagnoses and noted appellant’s history of back injury on
December 2, 2014. She reported that he last worked on May 17, 2016.
In a July 16, 2018 development letter, OWCP requested additional rationalized medical
opinion evidence establishing a causal relationship between appellant’s current condition and his
accepted employment injury. It provided him with a questionnaire for his completion and afforded
him 30 days for response.
In an August 2, 2018 statement, appellant noted that he had been receiving care for his
accepted back condition since September 2017 and he had continual low back symptoms. He
2

The record reveals that OWCP accepted appellant’s occupational disease claim for bilateral rotator cuff tears
under OWCP File No. xxxxxx481. That claim is not before the Board on this appeal.
3

On September 28, 2017 OWCP authorized a change of physicians to Dr. Williams.

2

asserted that his injury was chronic and that he continued to have issues with decreased range of
motion (ROM), occasional numbness and tingling, and severe muscle spasms. Appellant alleged
that he was not discharged from care, but had a short lapse in treatment due to shoulder surgery
and Dr. Benson’s retirement. He noted that his condition was worsened by prolonged walking or
sitting and other activities of daily living. Appellant alleged that his symptoms were continuous,
but that he also had intermittent spikes in pain when he increased his activities. He listed his other
conditions as carpal tunnel syndrome, bilateral shoulder injuries, and neck injuries.
On August 8, 2018 Dr. Camp-Simpson noted appellant’s history of injury in
December 2014 and diagnosed resulting conditions of lumbar sprain and radiculopathy. She again
noted that he last worked on May 17, 2016 and stopped due to his left shoulder injury “on a
different claim.” Dr. Camp-Simpson reviewed appellant’s magnetic resonance imaging (MRI)
scan of December 19, 2014 and his August 3, 2018 MRI scan. She found that his lumbar
radiculopathy and lumbosacral sprain were chronic in nature. Dr. Camp-Simpson noted that the
2018 MRI scan did not show significant improvement from a 2014 MRI scan. She opined that
appellant’s current condition was directly related to his original employment injury. Dr. CampSimpson noted that he reported increased symptoms of numbness, tingling, and lower extremity
weakness. She further noted that appellant’s activities had been limited to multiple shoulder
surgeries over the past two years. Dr. Camp-Simpson concluded that due to the extent of his
injuries he would experience episodic flares including increased muscle spasms, radicular
symptoms, and decreased ROM. She recommended continued physical therapy, injections, and
referral to an orthopedic surgeon.
By decision dated September 11, 2018, OWCP denied appellant’s recurrence claim finding
that he had not established that he required additional medical treatment due to a worsening of his
accepted work-related back conditions.
On October 10, 2018 appellant requested a review of the written record from an OWCP
hearing representative.
By decision dated March 1, 2019, OWCP’s hearing representative found that appellant had
failed to provide rationalized medical opinion evidence establishing that his need for medical
treatment due to the onset of pain and stiffness in his back on September 15, 2017 was causally
related to his accepted work-related back conditions.
LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 An employee has the burden of proof to establish that he or she

4

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.5
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden of proof.6
To meet this burden the claimant must submit medical evidence from a physician who, on
the basis of a complete and accurate factual and medical history, supports that the condition is
causally related and supports his or her conclusion with sound medical rationale.7 Where no such
rationale is present, medical evidence is of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted employment-related back
conditions.
Appellant provided a September 20, 2017 report by Dr. Williams who noted the accepted
employment injuries and diagnosed sprain of the lumbosacral joint and acute lumbar
radiculopathy. Dr. Williams did not causally relate his current conditions to the accepted back
conditions. Lacking an opinion on causal relationship, the Board finds that this report is of no
probative value.9 Thus, it is insufficient to establish appellant’s recurrence claim.
On April 25, May 21, and August 8, 2018 Dr. Camp-Simpson examined appellant due to
sprain of the lumbosacral joint ligament and acute lumbar radiculopathy. She noted his history of
back injury on December 2, 2014 and listed his accepted condition of lumbar sprain, finding that
this condition was chronic. Dr. Camp-Simpson noted that the 2018 MRI scan did not show
significant improvement from what was shown on a 2014 MRI scan. She opined that appellant’s
current condition was directly related to his original employment injury. Dr. Camp-Simpson
concluded that, due to the extent of his injuries, he would experience episodic flares including
increased muscle spasms, radicular symptoms, and decreased ROM. The Board has held that a
report is of limited probative value regarding causal relationship if it does not contain medical

5

M.P., Docket No. 19-0161 (issued August 16, 2019); E.G., Docket No. 18-1383 (issued March 8, 2019); T.B.,
Docket No. 18-0762 (issued November 2, 2018); E.R., Docket No. 18-0202 (issued June 5, 2018).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); J.M., Docket
No. 19-1111 (issued November 20, 2019); J.M., Docket No. 09-2041 (issued May 6, 2010).
7

A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).

8

O.H., id.; Michael Stockert, 39 ECAB 1186 (1988); Ronald C. Hand, 49 ECAB 113 (1997).

9

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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rationale explaining how a given medical condition is causally related to a prior accepted
employment condition.10
The Board finds that Dr. Camp-Simpson provided a conclusory opinion which did not
include a rationalized medical opinion establishing that appellant required further medical care
after September causally related to his accepted employment back conditions. Therefore, the
Board finds that her report is insufficient to establish his recurrence claim.11
Appellant further submitted reports signed by a nurse practitioner and a physical therapist.
Theses medical reports do not constitute competent medical evidence because neither a nurse
practitioner nor a physical therapist is considered a “physician” as defined under FECA and are
therefore not competent to provide medical opinions.12 Consequently, this evidence is also
insufficient to establish appellant’s claim.
As appellant has not submitted medical evidence sufficient to establish a recurrence of the
need for medical treatment causally related to his accepted employment-related back conditions,
the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted employment-related back
conditions.

10
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).
11

A.C., supra note 7; K.G., Docket No. 15-0669 (issued April 8, 2016).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also 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); C.S., Docket
No. 19-1279 (issued December 30, 2019) (nurse practitioners and physical therapists are not considered physicians as
defined under FECA).
12

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2020
Washington, DC

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

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

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

6


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1944
Issued: March 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 21, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 13, 2006 which denied her recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability due to her accepted employment injury beginning September 24, 2002.
FACTUAL HISTORY
On June 28, 1999 appellant, then a 31-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she was opening a door for mail delivery and a window fell

striking her in the head. The Office accepted that she sustained a neck strain and a right shoulder
strain. Appellant did not stop work.1
A magnetic resonance imaging (MRI) scan of the right shoulder dated September 3, 1999
revealed no abnormalities. An MRI scan of the lumbar spine dated August 27, 2002 revealed
multilevel degenerative disc disease. Appellant came under the treatment of Dr. Thomas M.
Mauri, a Board-certified orthopedic surgeon. In reports dated March 20 to November 16, 2000,
Dr. Mauri noted a history of injury and diagnosed right cervical radiculopathy, cervical
strain/sprain and possible intrinsic injury to the right shoulder. He noted that appellant could
work full time without restrictions. Dr. Mauri noted that an MRI scan of the lumbar spine on
February 23, 2001 revealed herniated discs at L2-3, L3-4, L4-5 and L5-S1. He diagnosed
chronic cervical and thoracic strain/sprain with herniated lumbar discs and bilateral knee internal
derangement. In reports dated January 17 to July 24, 2002, Dr. Mauri noted appellant’s
continued complaints of neck and right shoulder pain due to cervical and lumbar herniated discs.
On September 19, 2002 he stated that she could only work light duty and referred her to
Dr. Jason S. Lipetz, a Board-certified physiatrist.
In a treatment note dated July 1, 2002, Dr. Lipetz noted that appellant had a work-related
neck injury in 1999 and diagnosed mechanical lumbar discomfort of suspected discogenic origin
and multilevel degenerative disc disease and a posterior tear at L4-5. On September 20, 2002 he
noted that appellant presented with residual lumbar and buttock pain. Dr. Lipetz diagnosed
significant improvement of left lower extremity L4 and contributing L5 radiculopathy,
radiographic findings of foramina disc pathology to the left L4-5 and Grade 1 listhesis at L5-S1,
recently diagnosed Parkinson’s disease and mechanical lumbar discomfort with potentially
contributing cervical stenosis. In a physical therapy referral dated September 23, 2002,
Dr. Lipetz diagnosed discogenic lumbar back pain with multiple protrusions at L2-3 to L5-S1
with moderate stenosis. On September 23, 2002 he advised that appellant could not work and
would be reevaluated in one month. Dr. Lipetz prepared a duty status report dated October 23,
2002 and advised that appellant was totally disabled. On October 24, 2002 he diagnosed
persistent mechanical lumbar discomfort of suspected discogenic origin, radiographic findings
significant for multilevel disc protrusion and a posterior annular tear at L4-5.
On September 26, 2002 appellant filed a Form CA-2a, notice of recurrence of disability.
On September 23, 2002 she experienced neck and lumbar pain which she attributed to the
June 28, 1999 neck and right shoulder strain. Appellant stopped work on September 24, 2002.
The employing establishment noted that she worked limited duty after her original injury.
By letter dated October 22, 2002, the Office advised appellant of the evidence needed to
establish her claim for a recurrence of disability. It requested that she submit a physician’s
reasoned opinion addressing the relationship of her claimed recurrent condition and original
work injury.
Appellant submitted physical therapy notes from October 10 to
November 16, 2002.

1

On August 18, 1995 appellant field a traumatic injury claim for an injury to her low back. This claim was
accepted for dislocation of the lumbar vertebra, File No. 02-0702707.

2

In a decision dated December 3, 2002, the Office denied appellant’s claim on the grounds
that the evidence did not establish a change in the nature and extent of her injury-related
disability or a change in the nature of her light-duty job.
On July 29, 2003 appellant requested reconsideration. Her attorney submitted a
November 11, 2003 brief asserting that the evidence supported a recurrence of disability as of
September 23, 2002. In a November 15, 2002 work capacity evaluation, Dr. Mauri noted that
appellant had recurring neck and back pain and opined that she was totally disabled. On
December 4, 2003 he reported last seeing her on September 19, 2002. Dr. Mauri noted
appellant’s work injury of June 1999 and indicated that she had an exacerbation of her work
injury and recurrences of pain in January and September 2002. He diagnosed chronic injuries of
the cervical and lumbar spine, lumbar disc herniation, cervical strain/sprain and cervical
radicular syndrome. In reports dated November 25 to December 27, 2002, Dr. Lipetz noted
appellant’s complaints of lumbar pain. He diagnosed mechanical lumbar discomfort,
radiographic findings of multilevel disc protrusions, posterior annular tear at L4-5 and first
trimester of pregnancy. Dr. Lipetz noted that appellant worked light duty from January to
September 2002 and stopped work on September 24, 2002. In reports dated January 27 to
June 20, 2003, he noted appellant’s continued complaints of lumbar discomfort and advised that
she was totally disabled.
In a decision dated February 20, 2004, the Office denied modification of the
December 3, 2002 decision.
Appellant requested reconsideration asserting that she submitted sufficient evidence to
establish her recurrence of disability claim. She submitted a May 26, 2000 MRI scan of the
cervical spine that revealed mild diffuse posterior bulging of the disc annulus C3-4 and minimal
posterior bulging at C5-6 and C6-7, with no herniated disc or spinal stenosis. A February 23,
2001 lumbar spine MRI scan revealed a moderate-sized central herniated disc at L2-3, mild to
moderate central broad-based disc herniation at L3-4, small central herniated disc at L4-5. In a
March 31, 2004 report, Dr. Mauri advised that appellant became totally disabled on
September 24, 2002 and was not able to tolerate her work duties without medical treatment. On
June 3, 2004 he indicated that her disability on September 24, 2002 was directly related to the
work injury sustained on June 28, 1999 and that she remained totally disabled. Dr. Mauri’s
report of September 13, 2004 opined that appellant had an exacerbation of her work injury in
January and September 2002 and was totally disabled.
In a decision dated January 19, 2005, the Office denied modification of the February 20,
2004 decision. In a letter dated January 25, 2005, the Office advised appellant that on
January 18, 2005 it received additional medical evidence from Dr. Mauri dated December 13,
2004; however, this evidence was not in the file at the time of the Office decision and, therefore,
not considered in the January 19, 2005 decision.

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On March 28, 2005 appellant filed an appeal to the Board.2 In a May 12, 2006 order, the
Board remanded the case so that the Office could consider all of the evidence it had received
before issuing its January 19, 2005 decision.
On December 13, 2004 Dr. Mauri noted a marked increase of pain in the lower back,
right arm and shoulder secondary to work-related herniated discs in the cervical and lumbar
spine.
In reports dated April 6, 2005 to April 10, 2006, Dr. Mauri noted appellant’s complaints
of right leg and back pain. He advised that appellant remained totally disabled.
In a decision dated June 13, 2006, the Office denied modification of the January 19, 2005
Office decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.3
Causal relationship is a medical issue,4 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.

2

Docket No. 05-1036 (issued May 12, 2006).

3

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) (the Office’s definition of recurrence of
disability).
4

Mary J. Briggs, 37 ECAB 578 (1986).

4

ANALYSIS
Appellant sustained injury on June 28, 1999 accepted for a cervical and right shoulder
strain. She worked at regular duty, being placed on light duty on September 19, 2002. Appellant
filed a claim for a recurrence of disability beginning September 23, 2002. However, she has not
submitted sufficient evidence to show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.
In support of her claim, appellant submitted reports from Dr. Mauri dated September 19
and November 15, 2002. Dr. Mauri noted appellant’s treatment for neck and arm pain and
advised that she experienced recurring neck and back pain and was totally disabled from work.
However, Dr. Mauri’s September 19, 2002 report noted that appellant could continue working
light duty and his November 15, 2002 report did not address how appellant’s claimed recurrent
disability was due to the June 28, 1999 work injury.5
In a December 4, 2003 report, Dr. Mauri noted appellant’s work-related injury of
June 1999 and indicated that she had an exacerbation of her condition and recurrences of pain in
January and September 2002. However, he failed to explain the change in the nature of
appellant’s physical condition arising from the employment injury which prevented her from
performing her light-duty position. Additionally, the Board notes that there is no evidence of
bridging symptoms during Dr. Mauri’s treatment interval between September 2002 and
December 2003.6 Dr. Mauri did not adequately address how or why the lumbar disc herniation
and cervical radicular syndrome were related to the accepted soft tissue strains. The Office never
accepted that appellant sustained lumbar disc herniation and cervical radicular syndrome as a
result of her June 28, 1999 work injury.7 The Board has found that vague and unrationalized
medical opinions on causal relationship have little probative value. Dr. Mauri’s June 3, 2004
report, indicating that appellant’s total disability as of September 24, 2002, was directly related
to the June 28, 1999 work injury is conclusory as he did not provide a rationalized opinion
explaining why appellant’s recurrent condition and disability was due to the June 28, 1999 work
injury. The Board has found that vague and unrationalized medical opinions on causal
relationship have little probative value.8
In a September 13, 2004 report, Dr. Mauri found that appellant had an exacerbation of
her work injury of June 28, 1999 in January and September 2002. As noted, he failed to provide
5

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971) (where the Board
has consistently held that contemporaneous evidence is entitled to greater probative value than later evidence).
6

For the importance of bridging evidence in establishing a claim of continuing disability; see Robert H. St. Onge,
43 ECAB 1169, 1175 (1992).
7

Where an employee claims that a condition not accepted or approved by the Office was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment
injury. Jaja K. Asaramo, 55 ECAB 200 (2004).
8

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

5

a rational medical opinion explaining why appellant’s recurrent condition was due to the
June 28, 1999 work injury.9 Other reports from Dr. Mauri did not explain his basis for
concluding that appellant’s claimed recurrence of disability beginning September 24, 2002 was
causally related to the June 28, 1999 employment injury.
Appellant also submitted several reports from Dr. Lipetz. In a September 20, 2002
report, Dr. Lipetz noted findings, diagnoses and a treatment plan. However, he did not indicate
total disability or increased symptomatology due to the accepted employment injury. In a note
dated September 23 2002, Dr. Lipetz advised that appellant was unable to work, but did not
attribute the disability to the June 28, 1999 work injury. On October 24, 2002 he diagnosed
various conditions such as multilevel disc protrusion and a posterior annular tear at L4-5 and
advised that appellant was totally disabled from work. However, Dr. Lipetz did not explain how
the soft tissue injuries sustained in 1999 would cause or contribute to the diagnosed conditions
which prevented appellant from performing her light-duty position.10 He does not address how
the lumbar disc herniation and cervical radicular syndrome were due to the June 28, 1999 work
injury. Other reports from Dr. Lipetz dated November 25, 2002 to June 20, 2003, noted
appellant’s complaints and diagnoses. He failed to note a specific date of a recurrence of
disability or explain a particular change in the nature of appellant’s physical condition arising
from the employment injury which prevented her from performing her light-duty position.
The Board finds that appellant has submitted insufficient evidence to show a change in
the nature and extent of her physical condition, arising from the employment injury which
prevented her from performing her light-duty position.
The Board notes that there is no evidence showing that appellant experienced a change in
the nature and extent of the light-duty requirements or was required to perform duties which
exceeded her medical restrictions. The light-duty position performed by appellant was in
conformance with the medical restrictions set forth by her treating physician and remained
available until she stopped work. The record is devoid of evidence which would indicate that
there was a change in the nature and extent of the light-duty requirements or that she was
required to perform duties which exceeded her medical restrictions.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on September 24, 2002 causally related to her accepted neck
and right shoulder strain.

9

Id.

10

See Katherine A. Williamson, supra note 5.

6

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 11-177
Issued: August 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 28, 2010 appellant filed a timely appeal from the September 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 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 she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On December 30, 2007 appellant, then a 51-year-old letter carrier, filed a claim for
occupational disease, alleging that her work environment caused her to sustain panic attacks.2
1
2

5 U.S.C. §§ 8101-8193.

OWCP had previously denied appellant’s claim that she sustained an emotional condition due to factors at work
on September 9, 2006. This matter is not the subject of the present appeal.

Appellant claimed that management unfairly overburdened her mail delivery route by about 30
to 45 minutes depending on mail volume. She was not given any route assistance, but stated that
when she was off work the people who covered her route, whether experienced or not, were
given more time. Appellant claimed that, during conversations on December 17 and 18, 2007, a
supervisor fabricated a conversation with her. She alleged that she was unfairly denied one hour
of leave on December 18, 2007 for a doctor’s appointment. On December 17, 2007 appellant
requested an hour of leave for the next day and gave the request form to a manager other than
Joanne Fleszar, her immediate supervisor, because Ms. Fleszar was leaving for the day. On
December 18, 2007 Ms. Fleszar directed someone to go home early due to lack of work, but did
not allow appellant to leave early as previously arranged. Appellant contended that her request
was unfairly denied due to lack of medical documentation. She claimed that she was forced to
work on weekends despite her medical restrictions and that her 1999 knee injury had been an
“open issue” on the workroom floor and had been improperly discussed in front of coworkers.
Appellant asserted that she had been harassed by coworkers for having had an injury and for
working with restrictions and claimed that different supervisors had dealt with her work
restrictions in different manners.3
In a January 30, 2008 statement, Ms. Fleszar stated that appellant had been working in a
limited-duty position due to a 1999 knee injury and asserted that her delivery route was
appropriate given her medical condition. She made no announcement about anyone going home
on December 18, 2007 and explained that she properly denied appellant’s leave request based on
her failure to submit adequate medical documentation. Ms. Fleszar denied that she harassed
appellant or improperly discussed her medical condition with her coworkers.
In an April 8, 2008 decision, OWCP denied appellant’s emotional condition claim on the
grounds that she did not establish any compensable employment factors.
Appellant requested a hearing before OWCP’s hearing representative.
At the
November 18, 2008 hearing, she further discussed her work. Appellant reiterated that coworkers
had harassed her due to her medical condition and called her “sick, lame and lazy.” She claimed
that harassment in the workplace was not adequately addressed by management.
In a February 11, 2009 decision, OWCP’s hearing representative set aside OWCP’s
April 8, 2009 decision and remanded the case for further development. Appellant indicated that
OWCP had not adequately considered several claimed work factors, including those relating to
her mail delivery route or harassment by coworkers.
The employing establishment submitted a March 24, 2009 statement advising that
appellant’s mail delivery route was in accordance with the relevant procedures and that her leave
requests were properly denied. It asserted that she was given appropriate support for her mail
route and that she was not treated differently from similarly situated employees.
In a May 5, 2009 decision, OWCP again denied appellant’s emotional condition claim on
the grounds that she did not establish any compensable employment factors.

3

Appellant also submitted several medical reports regarding treatment of her psychiatric condition.

2

In a January 14, 2010 decision, OWCP’s hearing representative set aside the May 5, 2009
decision and remanded the case for further development. She directed OWCP to obtain further
information about appellant’s claimed work factors, including her claim that her mail delivery
route required delivery of more mail than those of her coworkers and her claim that the issue of
workplace violence was not adequately addressed by management.
The employing establishment provided a February 4, 2010 statement in which it noted
that appellant’s mail delivery route was not heavier than her coworkers’ routes and stated that all
employees were appropriately advised about the zero tolerance rule for workplace violence. It
reiterated that her leave requests were properly denied.
Appellant requested another hearing before OWCP’s hearing representative and, at an
August 3, 2010 hearing, she further discussed her claimed employment factors.
In a September 21, 2010 decision, OWCP’s hearing representative denied appellant’s
emotional condition claim on the grounds that she did not establish any compensable
employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

3

To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.9
However, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.10
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.11 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must
initially review whether the alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler.15 Rather, she has alleged
error and abuse in administrative matters and harassment and discrimination on the part of her
managers and coworkers.

9

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

10

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

11

Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

See Lillian Cutler, supra note 4.

4

Appellant alleged that the employing establishment committed error and abuse with
respect to various administrative matters. She claimed that management unfairly overburdened
her mail delivery route relative to those of her coworkers and that she was not given adequate
support on her route. Appellant alleged that she was improperly denied leave, particularly
regarding her request for leave on December 18, 2007, and that management did not adequately
or fairly account for her medical condition in assigning work duties. She also claimed that
management did not adequately address policies regarding harassment and violence in the
workplace. Although these matters are generally related to appellant’s employment, they are
administrative functions of the employer rather than the regular or specially assigned work duties
of the employee and would only be covered if the employing establishment committed error or
abuse with respect to them. The standard for evaluating the existence of such error or abuse is
reasonableness.16
The Board finds that appellant has not established error or abuse by management with
respect to these administrative matters. Appellant indicated that she filed grievances with respect
to some of these matters, but she did not submit favorable holdings of grievances or other
probative evidence supporting her belief that such wrongdoing occurred. On appeal she alleged
that the employing establishment repeatedly violated the national agreement between
management and employees. However, appellant did not submit any evidence to support this
assertion. Therefore, she has not established any compensable employment factors with respect
to administrative or personnel matters.
Appellant alleged that coworkers harassed her by making light of her medical condition,
including making references to her as being sick and lazy. She also claimed that supervisors
harassed her by unnecessarily discussing her medical condition with coworkers. In the present
case, the employing establishment denied that appellant was subjected to harassment and
appellant has not submitted sufficient evidence to establish that she was harassed by her
supervisors or coworkers.17 Appellant alleged that supervisors and coworkers made statements
and engaged in actions which she believed constituted harassment, but she provided no
corroborating evidence, such as witness statements, to establish that the statements actually were
made or that the actions actually occurred.18 Thus, she has not established any compensable
employment factors under FECA with respect to the claimed harassment.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.19
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.
16

See supra notes 6 through 8.

17

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
18

See William P. George, 43 ECAB 1159, 1167 (1992).

19

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, PUGET SOUND
NAVAL SHIPYARD, Bremerton, WA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No Appearance, for the Director

Docket No. 07-1288
Issued: May 13, 2008

Oral Argument December 6, 2007

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 5, 2007 appellant filed a timely appeal from a decision of a hearing
representative for the Office of Workers’ Compensation Programs dated February 20, 2007,
which denied his claim for compensation for intermittent periods. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant was not entitled to
compensation for the periods April 6 through December 11, 1996; January 6, 1997 through
May 10, 1998 and July 22, 1999 through August 24, 2000.
FACTUAL HISTORY
On March 2, 1988 appellant, then a 40-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained epicondylitis of the right elbow and arm

due to his federal duties.1 On December 17, 1990 the Office accepted appellant’s claim for right
lateral epicondylitis. On October 23, 1989 appellant filed a claim alleging a recurrence of this
injury on October 20, 1989. This claim was accepted for bilateral epicondylitis.2 Appellant
returned to work light duty in June 1991. The record reveals that the Office found that as
appellant held this light-duty position for more than 60 days it represented his wage-earning
capacity.
Appellant retired from federal employment in May 1993. Several months later he began
employment as a school bus driver. In a November 6, 1995 letter from the division manager at
Laidlaw Transit, he stated that appellant was employed as a substitute trip driver and drives
school buses and MCI coach type busses. He noted that appellant worked approximately 25 to
35 hours per week and that while on a trip he would drive about 3 hours and have a 3 to 8 hour
break before the return trip to Coos Bay. The division manager also noted that most of the
busses appellant drives have automatic/air door on them.
In a report dated January 31, 1996, Dr. Jeffrey K. Bert, an attending Board-certified
orthopedic surgeon, stated that appellant would be greatly relieved by a carpal tunnel release and
that he had suffered for a long time with carpal tunnel syndrome. On February 29, 1996
appellant had surgery -- an extensor erasure. He received wage-loss compensation for the period
February 28 to April 5, 1996.
In a March 13, 1996 progress note, Dr. Bert indicated that the incision was healing and
all sutures were out. He further noted that appellant wanted to return to driving at the end of one
month and that this was fine with him. In an April 4, 1996 attending physician’s report, Dr. Bert
listed his diagnosis as bilateral chronic epicondylitis and carpal tunnel which he believed was
caused by two decades of exposure to sheet metal working with rivet. He listed appellant as
totally disabled from February 28 through April 5, 1995 and partially disabled from April 8
through May 1, 1996. Dr. Bert released appellant to intermittent driving.
In an April 27, 1996 unsigned report, Dr. Alan L. Whitney noted that appellant was a
patient of Dr. Bert’s who was status post right elbow exploration for lateral epicondylitis of the
left elbow. He noted that appellant would like to get back to sheet metal work. Dr. Whitney
noted that appellant was presently driving a school bus and said he was tolerating that well. He
noted that appellant’s pain in his right elbow had changed and that he did have a palpable defect
on the right from his previous operation. Dr. Whitney noted a full range of motion of elbow but
that strength was somewhat reduced and that this seemed to cause him pain.
1

Appellant worked as a sheet metal worker with the employing establishment from August 1967 through
May 1993. As a sheet metal worker, his employment required them to carry, lift and set up sheet metal equipment
weighing up to 50 pounds. Appellant also operated hand and power driven brakes, saws, punches, rivet guns,
shears, toggle-presses, nibblers, rolls, tube-benders and spot welders. He has several other accepted claims for
elbow and wrist conditions arising out of his federal employment.
2

Appellant also filed a claim for an injury on October 8, 1976 that was accepted for right epicondylitis. A claim
for an injury on October 20, 1989 was accepted for bilateral epicondylitis and a schedule award was paid for a two
percent impairment of the left upper extremity. Appellant filed a claim with a date of injury of November 28, 1991
that was accepted for bilateral epicondylitis. Finally, he filed a claim for a date of injury on October 22, 1994 which
was accepted for left carpal tunnel syndrome.

2

In a May 28, 1996 note, Dr. Bert indicated that appellant had full range of motion to both
elbows. He noted that appellant was taking no pain medicine. Dr. Bert recommended more
physical therapy, noting that appellant had not been able to complete his course of physical
therapy due to his bus driving schedule. He believed appellant needed a carpal tunnel release. In
a June 26, 1996 note, Dr. Bert indicated that appellant’s therapy aggravated his elbow and that he
now has pain over the lateral aspect, although grip strength was good. He noted that they will
stop formal therapy. Dr. Bert further noted that appellant was not working as a school bus driver
as it was summer and that “we will simply have him rest the arm, apply local heat and cold.” In
an August 7, 1996 note, he indicated that he was still awaiting authorization for carpal tunnel and
that he thought carpal tunnel syndrome was directly related to appellant’s work as a sheet metal
worker. Dr. Bert noted that appellant was in urgent need of this surgery.
On December 12, 1996 appellant underwent a right carpal tunnel release. The Office
paid compensation for wage loss from December 12, 1996 through January 5, 1997. Appellant
claimed disability compensation commencing January 6, 1997.
In an attending physician’s report form completed on March 26, 1997, Dr. Bert diagnosed
status post right elbow extensor erasure, carpal tunnel syndrome and extensor erasure right
elbow. He noted that he first treated appellant on August 1, 1995, that he treated him for right
carpal tunnel syndrome and extensor erasure right elbow, that he was totally disabled from
February 28 through April 5, 1996 and partially disabled from April 8 through May 1996.
Dr. Bert further noted that appellant requested light-duty release, which was given with a
restriction of intermittent driving. In a medical note dated April 28, 1997, Dr. Bert noted that
appellant had improved and that he was medically stationary. He noted significant permanent
impairment based upon pain about his elbow and weakness of grip on the right and continued
pain symptoms about the carpal tunnel incision. Dr. Bert noted that appellant’s left elbow
continued to hurt him and this limited him as well. He believed that these conditions were
permanent and will restrict him from doing “certainly the work he has done in the past as a sheet
metal worker and would restrict him to what I feel is a light-duty work capacity.”
The Office issued a schedule award for compensation for 20 percent permanent
impairment of the right arm on May 14, 1999. The period of the schedule award was May 11,
1998 to July 21, 1999.
By decision dated April 18, 2005, the Office denied appellant’s claims for compensation
for the following periods: May 1, 1993 through February 27, 1996; April 6 through
December 11, 1996; January 6, 1997 through May 10, 1998 and July 22, 1999 through
August 24, 2000.3
Appellant requested an oral hearing before an Office hearing representative, which was
held on December 5, 2006. He testified that he had filed multiple claims resulting from his
employment as a sheet metal mechanic for the employing establishment. Appellant contended
that he did not voluntarily retire from the employing establishment because he took an incentive
payment and that there was no voluntary retirement if an incentive is offered. Furthermore, he
3

Appellant informed this Board, in letters to the Board and at oral argument, that he was not appealing the denial
of compensation for the period from May 1, 1993 through February 22, 1996.

3

stated that the real reason he left the employing establishment was that a false sexual harassment
claim had been filed against him. Appellant noted that, shortly after leaving the employing
establishment he began to work as a school bus driver, a position that was less physically
strenuous than his position with the employing establishment. However, he testified that he left
this position when a woman threatened to file a sexual harassment claim against him. Appellant
noted that he has not worked since he drove the bus.
By decision dated February 20, 2007, the hearing representative affirmed the Office’s
April 18, 2005 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
an assignment are altered so that they exceed his established physical limitations.5 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he was no longer able to perform the light-duty assignment.6
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.7 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.8 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.9
ANALYSIS
In the instant case, the Office accepted appellant’s claim for bilateral epicondylitis.
Appellant returned to a light-duty position for the employing establishment in June 1991 and
4

20 C.F.R. § 10.5(x).

5

Id.

6

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

7

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
8

See Helen K. Holt, supra note 7.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

4

continued in this position until he retired on May 1, 1993.
appellant was employed as a school bus driver.

Subsequent to his retirement,

On February 29, 1996 appellant underwent surgery for an extensor erasure. The Office
paid appellant wage-loss compensation for the period February 28 through April 5, 1996. The
Office denied appellant compensation for the period commencing April 6, 1996. Dr. Bert,
appellant’s treating physician, indicated that he was totally disabled from February 28 through
April 5, 1996. However, he only found appellant partially disabled commencing April 8, 1996.
In an April 27, 1996 report, Dr. Whitney noted that appellant was driving a school bus and
tolerating that well. He noted that appellant had a full range of motion in the elbow but that his
strength was somewhat reduced and seemed to cause him pain. In a May 28, 1996 report,
Dr. Bert noted that appellant had full range of motion to both elbows and was taking no
medicine. He did note that appellant needed a carpal tunnel release. No physician during the
time period April 6 through December 11, 1996 stated that appellant is totally disabled due to his
accepted work-related condition, nor does any physician indicate that appellant could not
perform the duties of the light-duty position he was performing until he voluntarily retired
in 1993. There is no indication that appellant was forced to retire due to his accepted work
condition. Accordingly, he has not established that he was totally disabled for this time period.
On December 12, 1996 appellant underwent a right carpal tunnel release. The Office
paid compensation for wage loss from December 12, 1996 through January 5, 1997.
Furthermore, the Office issued a schedule award for a 20 percent impairment of the right arm.
The period of the schedule award was from May 11, 1998 to July 21, 1999. Appellant claimed
compensation for the periods January 6, 1997 through May 10, 1998 and July 22, 1999 through
August 24, 2000.
Appellant has not submitted medical evidence to establish that he was totally disabled
during these time periods. In a March 26, 1997 report, Dr. Bert diagnosed appellant with status
post right elbow extensor erasure, carpal tunnel syndrome and extensor erasure right elbow. He
noted that appellant had a restriction of intermittent driving. In an April 28, 1997 note, Dr. Bert
noted that appellant had improved and was medically stationary. He noted permanent
impairment based upon pain about his elbow, weakness of grip and continued pain symptoms.
Dr. Bert opined that, although these symptoms would restrict appellant from doing the work of a
sheet metal worker, he could work in a light-duty work capacity. Accordingly, his opinions are
insufficient to establish a recurrence of disability in that they do not establish that appellant could
not perform his light-duty work.
Appellant has not established that he sustained a recurrence of total disability for the time
periods April 6 through December 11, 1996; January 6, 1997 through May 10, 1998; and July 22,
1999 through August 24, 2000. Accordingly, the Office properly denied compensation for total
disability during these time periods.
CONCLUSION
The Board finds that the Office properly denied compensation for the periods April 6
through December 11, 1996; January 6, 1997 through May 10, 1998; and July 22, 1999 through
August 24, 2000.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2007 is affirmed.
Issued: May 13, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
International Falls, MN, Employer
__________________________________________

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

Docket No. 14-1
Issued: April 2, 2014

Case Submitted on the Record

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

JURISDICTION
On September 30, 2013 appellant filed a timely appeal from an April 24, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established greater than a three percent impairment of
the left lower extremity, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Accompanying his request for appeal, appellant submitted new medical evidence, including an impairment
rating. The Board may not consider new evidence for the first time on appeal that was not before OWCP at the time
it issued the final decision in the case. 20 C.F.R. § 501(2)(c). Appellant may submit the new evidence to OWCP
accompanying a valid request for reconsideration within one year of the issuance of this decision and order.

On appeal, appellant asserts that a new medical report accompanying his appeal request
was sufficient to establish that he sustained more than a three percent impairment of the left
lower extremity.
FACTUAL HISTORY
OWCP accepted that on March 9, 2010 appellant, then a 59-year-old maintenance
worker, sustained open lacerations of the left knee, leg and ankle with complications when a
large rock fell from a dump trailer and struck his leg. Appellant underwent surgical repair of the
laceration on March 9, 2010. He was hospitalized from April 17 to 26, 2010 to debride necrotic
tissue and treat a secondary infection. Appellant returned to light duty in April 2010 and to full
duty on June 21, 2010. He received compensation for work absences.
On May 4, 2011 appellant claimed a schedule award. In support of his claim, he
submitted a December 16, 2010 report from Dr. Constante S. Avecilla, an attending Boardcertified surgeon, finding that appellant’s left leg was permanent and stationary as of
August 5, 2010. Dr. Avecilla noted that appellant’s wound was completely healed, with a large
scar secondary to the laceration. He opined that the laceration caused vascular damage.
Appellant also had numbness in the distal left leg secondary to the laceration of secondary nerve
endings.
In a June 26, 2011 report, Dr. Brian K. Konowalchuk, an attending physician Boardcertified in occupational medicine, reviewed the medical record, including a March 8, 2011
functional capacity evaluation noting a slightly asynchronous gait favoring the left lower
extremity. On examination of the left leg, he noted full strength, full motion of the knee and
ankle, “extensive scarring to the medial and posterior leg” with numbness and paresthesias in the
saphenous nerve distribution. Dr. Konowalchuk observed a mildly antalgic gait. He also related
appellant’s symptoms of leg pain with intermittent swelling. Dr. Konowalchuk opined that
according to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, the A.M.A., Guides), appellant had a seven percent whole
person impairment for weakness of the left leg without sensory loss.
On August 6, 2011 an OWCP medical adviser reviewed the medical record, including
Dr. Konowalchuk’s impairment rating. He found that appellant had reached maximum medical
improvement as of December 16, 2010 when evaluated by Dr. Avecilla. The medical adviser
opined that according to Table 16-123 of the sixth edition of the A.M.A., Guides, appellant had
three percent impairment of the left lower extremity due to sensory impairment of the saphenous
nerve. He noted that there were no applicable grade modifiers.
By decision dated April 24, 2013, OWCP granted appellant a schedule award for three
percent impairment of the left lower extremity.

3

Table 16-12, page 534 of the sixth edition of the A.M.A., Guides is titled “Peripheral Nerve Impairment -Lower Extremity Impairments.”

2

LEGAL PRECEDENT
The schedule award provisions of FECA4 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.5 For schedule awards beginning May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
In some instances, an OWCP medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.9
ANALYSIS
Appellant claimed a schedule award for permanent impairment of the left lower extremity
caused by accepted lacerations of the left leg. He submitted a December 16, 2010 report from
Dr. Avecilla, an attending Board-certified surgeon, finding that he had reached maximum
medical improvement. Appellant also provided a June 26, 2011 report from Dr. Konowalchuk,
an attending physician Board-certified in occupational medicine, who provided a whole person
4

5 U.S.C. § 8107.

5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

A.M.A., Guides (6th ed., 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides (6th ed., 2008), pp. 494-531.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(j) (September 2010).

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impairment rating according to the fifth edition of the A.M.A., Guides. However, the sixth
edition of the A.M.A., Guides was in effect as of May 1, 2009.10 Also, FECA does not authorize
schedule awards for impairment of the “whole person.”11
As appellant’s physicians were unable to provide an appropriate impairment rating,
OWCP relied on the August 6, 2011 report of an OWCP medical adviser, who applied the
appropriate sections of the sixth edition of the A.M.A., Guides to Dr. Konowalchuk’s clinical
findings. The medical adviser explained that appellant had full strength and range of motion, the
only appropriate impairment was for sensory deficit in the sensory distribution of the saphenous
nerve. He assessed three percent impairment, noting that there were no appropriate grade
modifiers.
The Board finds that OWCP properly relied on the its medical adviser’s August 6, 2011
impairment rating. The medical adviser properly applied the appropriate portions of the correct
edition of the A.M.A., Guides to Dr. Konowalchuk’s clinical findings.12 Therefore, OWCP’s
April 24, 2013 decision finding that appellant sustained three percent impairment of the left
lower extremity was proper under the facts and circumstances of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, appellant asserts that a new medical report accompanying his appeal request
was sufficient to establish that he sustained more than a three percent impairment of the left
lower extremity. As stated above, the Board may not consider new evidence for the first time on
appeal.13 Such evidence may be submitted to OWCP accompanying a valid request for
reconsideration within one year of the issuance of this decision and order.
CONCLUSION
The Board finds that appellant has not established that he sustained more than three
percent impairment of the left lower extremity, for which he received a schedule award.

10

An opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of diminished probative value in determining the extent of permanent impairment.
I.F., Docket No. 08-2321 (issued May 21, 2009).
11

D.H., 58 ECAB 358 (2007).

12

See supra note 9.

13

20 C.F.R. § 501(2)(c).

4

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2014
Washington, DC

Richard J. Daschbach, 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
__________________________________________
J.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
INFORMATION & TECHNOLOGY SERVICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 11-1229
Issued: February 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 26, 2011 appellant, through her representative, filed a timely appeal from a
March 8, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her recurrence of disability claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing on March 19, 2010 causally related to her accepted left lower extremity injuries or
bilateral carpal tunnel syndrome.
On appeal, appellant’s representative contends that OWCP’s March 8, 2011 decision is
contrary to fact and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 25, 1987 appellant, then a 44-year-old computer
clerk, sustained a left medial meniscus tear with derangement of the left knee, traumatic
arthropathy of the left knee and a left ankle sprain when she slipped on a floor plate cover.2 She
stopped work after the injury. Appellant returned to a modified secretarial position on
January 26, 1988. On February 1, 1989 and February 20, 1991 she underwent arthroscopic
partial lateral meniscectomies with debridement of the tibial plateau. OWCP approved both
procedures. Appellant returned to a modified secretarial position in December 1992, with
intermittent recurrences of disability through 2004.
On November 12, 2004 Dr. Mark I. Froimson, an attending Board-certified orthopedic
surgeon, performed a left knee arthroscopy with partial lateral meniscectomy, chondroplasty and
excision of loose bodies. On June 6, 2005 appellant accepted a modified secretarial position,
with sitting seven hours a day, walking up to one hour a day, lifting up to 20 pounds and no
squatting or kneeling.3
Appellant stopped work on November 3, 2008. On February 23, 2009 Dr. Froimson
performed a total left knee arthroplasty, approved by OWCP. Appellant returned to work on
August 17, 2009 as a modified automation secretary, with frequent lifting up to 10 pounds and
occasional lifting up to 50 pounds, changing positions as needed, no squatting, twisting or
turning, no reaching below the knee or above the shoulder and a 10- to 15-minute break after
each hour of sitting, standing or walking.
On April 20, 2010 appellant claimed a recurrence of disability commencing March 19,
2010 related to the accepted left knee injuries and carpal tunnel syndrome. She submitted an
October 21, 2009 report from Dr. Ajay Buddharuju, an attending orthopedic surgeon, who
diagnosed severe osteoarthritis of the right knee. A March 10, 2010 imaging study showed mild
degenerative changes of the right knee with no changes in the left knee replacement. In a
March 24, 2010 report, Dr. Froimson stated that appellant was unable to work on March 19 and
22, 2010 due to a flare-up of “knee osteoarthritis.” He released her to work on March 23, 2010
with limited walking. In an April 6, 2010 report, Dr. Debabrata Ghosh, an attending neurologist,
obtained electromyogram studies showing bilateral carpal tunnel syndrome.
In a May 20, 2010 letter, OWCP advised appellant of the evidence needed to establish
her claim for recurrence of disability, including a factual statement explaining why she stopped

2

OWCP assigned the November 25, 1987 injuries case File No. xxxxxx060. Under File No. xxxxxx615, it also
accepted bilateral carpal tunnel syndrome, right leg and knee abrasions and a left hand contusion sustained in a
separate traumatic incident. OWCP doubled the claims in December 2002. It also accepted a right knee and
shoulder sprain under File No. xxxxxx370 and a right ankle injury under File No. xxxxxx811. Between
January 2000 and June 29, 2004, OWCP issued appellant schedule awards totaling a 59 percent permanent
impairment of the left leg and 7 percent impairment of the left arm.
3

By decision dated November 30, 2006, OWCP found that appellant had no loss of wage-earning capacity as she
had successfully performed the modified secretary job since June 6, 2005 with wages equal to or greater than those
of her date-of-injury position.

2

work and a report from her attending physician supporting that she could no longer perform her
assigned modified-duty position due to a worsening of the accepted conditions.
In a June 8, 2010 letter, appellant contended that her duties required walking long
distances, stair climbing and prolonged keyboarding. She noted that she took online college
classes unrelated to her employment.
In a June 9, 2010 report, Dr. Froimson recommended a total right knee arthroplasty for
post-traumatic knee osteoarthritis. He found appellant totally disabled for work.
In a June 15, 2010 letter, appellant’s supervisor stated that, since appellant returned to
limited duty in 2009, she was not required to climb stairs. Appellant’s duties consisted of
updating telephone lists for up to 15 minutes once a day and updating documents for up to 30
minutes a day. She was not required to sit, walk or type for prolonged periods.
In June 29 and July 29, 2010 reports, Dr. Stephen P. Hayden, an attending Boardcertified internist, diagnosed osteoarthritis of the right knee requiring total arthroplasty and
bilateral carpal tunnel syndrome. He held appellant off work.
By decision dated August 12, 2010, OWCP denied appellant’s claim for recurrence of
disability. It found that she did not submit sufficient medical evidence supporting a worsening of
the accepted conditions or a change in her light-duty job requirements on March 19, 2010 such
that she was no longer able to perform her modified position.
In an August 24, 2010 letter, appellant requested a telephonic hearing, held on
December 7, 2010. At the hearing, she testified that she was required to carry documents to and
from her workstation to her supervisor’s office, a distance of three city blocks each way.
Appellant also asserted that, upon her return to work in December 2009, her workload increased
as no one updated files during her absence. She estimated spending five to six hours a day
keyboarding at work. In addition to her work duties, appellant participated in online college
coursework for four to five hours a day. She contended that her right knee and carpal tunnel
symptoms worsened in March 2010 due to prolonged walking and keyboarding. Appellant
submitted additional medical evidence.
In November 16, 2010 reports, Dr. Froimson diagnosed post-traumatic lateral and
patellofemoral compartment osteoarthritis of the right knee. He found appellant temporarily
disabled for work. November 16, 2010 x-rays showed no significant progression of severe right
knee arthritis or change in the left knee arthroplasty or hardware alignment. In a December 9,
2010 report, Dr. Buddharuju diagnosed osteoarthritis of the knee and prescribed physical
therapy.4
By decision dated March 8, 2011, OWCP affirmed the August 12, 2010 decision denying
appellant’s claim for recurrence of disability. The hearing representative found that appellant did
not establish as factual that she was required to walk long distances or perform prolonged
4

Appellant submitted physical therapy notes dated from August 2010 through January 2011.

3

keyboarding. He further found that the medical evidence did not establish a change or worsening
of the accepted conditions on March 19, 2010 such that appellant was no longer able to perform
her modified-duty position. The hearing representative noted that appellant did not submit
sufficient medical evidence to accept a right knee condition.
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.”5 When an employee, who is
disabled from the job he or she held when injured on account of employment-related residuals,
returns to a light-duty position or the medical evidence establishes that the employee can perform
the light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence, a recurrence of total disability and to show that he or she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty job requirements such that the position exceeds the employee’s physical limitations.6 An
award of compensation may not be based on surmise, conjecture or speculation or on appellant’s
unsupported belief of causal relation.7
ANALYSIS
OWCP accepted that appellant sustained traumatic arthropathy and meniscal tears of the
left knee necessitating three arthroscopies from 1989 to 1994, followed by a total left knee
arthroplasty on February 23, 2009. It also accepted bilateral carpal tunnel syndrome. Following
the arthroplasty, appellant returned to work as a modified secretary on August 17, 2009. She
claimed a recurrence of total disability commencing March 19, 2010, asserting both a worsening
of the claimed conditions and a change in her light-duty job requirements. OWCP denied
appellant’s claim for a recurrence of disability by decision dated August 12, 2010 and March 8,
2011 on the grounds that the medical evidence submitted did not support a worsening of the
accepted conditions such that she was disabled for work or a change in her light-duty job that
exceeded her work restrictions.
In support of her claim, appellant submitted medical reports which she alleged
demonstrated a worsening of the accepted conditions on March 19, 2010. Dr. Froimson, an
attending Board-certified orthopedic surgeon, stated in a March 24, 2010 report that appellant
was disabled for work on March 19 and 22, 2010 due to a flare up of osteoarthritis of one of her
knees. In reports from June 9 to November 16, 2010, he found that she disabled for work due to
5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
6

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also
Terry R. Hedman, 38 ECAB 222 (1986).
7

Alfredo Rodriguez, 47 ECAB 437 (1996).

4

osteoarthritis of the right knee. However, Dr. Froimson did not explain how the March 19, 2010
flare up or right knee osteoarthritis was related to the accepted injuries. Similarly, Dr. Hayden,
an attending Board-certified internist, found appellant totally disabled for work in June and
July 2010 due to right knee osteoarthritis, but did not provide medical rationale supporting a
causal relationship between the left knee injuries and right knee arthritis. The lack of rationale
greatly reduces the probative value of Dr. Froimson’s and Dr. Hayden’s opinion.8
Appellant also submitted an October 21, 2009 report from Dr. Buddharuju, an attending
orthopedic surgeon, who diagnosed osteoarthritis of the right knee and an April 6, 2010 report
from Dr. Ghosh, an attending neurologist, regarding carpal tunnel syndrome. However, neither
physician addressed any period of disability for work. Therefore, their reports are insufficient to
meet appellant’s burden of proof.
Appellant also alleged a change in the nature of her light-duty requirements following her
return to work in August 2009. She contended that she was required to walk a distance of three
city blocks to deliver papers to her supervisor’s office, perform prolonged keyboarding and
update neglected files for several hours a day. However, appellant’s supervisor controverted
appellant’s account in a June 15, 2010 letter, explaining that appellant had only 45 minutes of
work to perform each day and was not required to walk or type for prolonged periods. Also,
appellant did not provide any factual evidence corroborating a change in her job requirements.
The Board finds that she has not met her burden of proof in this regard.9
On appeal, counsel contends that the March 8, 2011 decision is “contrary to fact and
law.” As stated, appellant did not submit sufficient evidence to establish a worsening of the
accepted conditions on March 19, 2010 such that she could no longer perform her modified
secretarial job or a change in her modified duties such that they were beyond her physical
limitations. Therefore, the Board finds that the March 8, 2011 decision denying her claim for a
recurrence of disability commencing March 19, 2010 was proper under the law and facts of this
case.
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 established that she sustained a recurrence of
disability commencing on March 19, 2010 causally related to accepted left lower extremity
injuries and bilateral carpal tunnel syndrome.

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

J.F., supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 8, 2011 is affirmed.
Issued: February 23, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 07-1632
Issued: December 17, 2007

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 22, 2007 denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a left foot injury causally
related to factors of his federal employment.
FACTUAL HISTORY
On December 18, 2006 appellant, then a 52-year-old clerk, filed an occupational claim
(Form CA-2), alleging that he sustained a sore left foot causally related to his federal
employment. He stated that the mat on the machine he was operating was bad.
With respect to medical evidence, appellant submitted a December 18, 2006 report from
Dr. Remigio Abello, a general practitioner, who reported that appellant stated that “over a period

of time from standing on a bad mat my left heel has been hurting.” Dr. Abello provided a history
that appellant suffered an overuse injury of the left foot and symptoms were exacerbated by
walking. He provided results on examination and diagnosed foot contusion. A CA-17, form
report, dated December 18, 2006, diagnosed left foot contusion and indicated that appellant
could work with restrictions. In a report dated December 20, 2006, Dr. Abello indicated that
appellant’s symptoms were improving. Appellant also submitted a December 26, 2006 report
from Dr. Alejo Sryvalin, a surgeon, diagnosing foot contusion and an additional report dated
January 2, 2007 from Dr. Abello indicating that appellant could return to work without
restrictions.
By letter dated January 8, 2007, the Office requested that appellant submit additional
evidence with respect to his claim. Appellant submitted a narrative statement alleging that the
mat he worked on was worn out and caused his left foot to be partly on the mat and partly on the
concrete floor. He stated that he never had problems with his foot before August 2006 when he
first noticed soreness.
In a decision dated March 22, 2007, the Office denied the claim for compensation. It
found that the medical evidence was not sufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.3
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.4 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.5
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

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

5

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

2

Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.6
ANALYSIS
Appellant alleged that he developed a left foot condition from standing on a mat that was
worn. To meet his burden of proof, he must submit medical evidence with a rationalized opinion
on causal relationship between a diagnosed condition and the implicated employment factor.
In this case, the medical evidence does not contain a rationalized medical opinion.
Dr. Abello diagnosed a left foot contusion, without providing a medical opinion on causal
relationship. He noted appellant’s statement that his left heel was hurting after standing on a
mat, but neither Dr. Abello nor any physician of record provided a rationalized medical opinion
relating the diagnosed condition to the identified employment factor. In the absence of such
evidence, the Board finds that appellant did not meet his burden of proof to establish his claim.
CONCLUSION
Appellant did not submit rationalized medical opinion evidence on the issue of causal
relationship between a diagnosed condition and the identified employment factor and, therefore,
he did not meet his burden of proof to establish the occupational injury claim.

6

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2007 is affirmed.
Issued: December 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Egg Harbor Township, NJ, Employer
__________________________________________

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

Docket No. 13-310
Issued: July 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 21, 2012 appellant filed a timely appeal from a July 12, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision which denied his claim for an
employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
monaural (left ear) loss of hearing in the performance of duty, causally related to factors of his
federal employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 12, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that the second opinion physician was hostile and made
derogatory remarks during the examination.
FACTUAL HISTORY
On December 13, 2011 appellant, then a 47-year-old air marshal, filed an occupational
disease claim (Form CA-2) alleging that he sustained partial hearing loss in the left ear due to
factors of his federal employment, such as exposure to firearms.
In a January 13, 2012 letter, OWCP informed appellant of the deficiencies of his claim
and afford him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a statement indicating that his job duties required quarterly firearms
requalification. He also submitted a December 8, 2011 audiogram which revealed normal
hearing in the left ear through 1,000 hertz sloping to a mild-to-moderate sensorineural hearing
loss.
In an undated report, Dr. Daniel Hwang, a Board-certified otolaryngologist, diagnosed
left ear moderate sensorineural hearing loss. He opined that based on appellant’s past work
history, there was a very high probability that he sustained left-sided hearing loss due to
prolonged exposure to noise from firearms related to work. On December 8, 2011 Dr. Hwang
diagnosed asymmetrical sensorineural hearing loss. In a January 9, 2012 report, he reiterated the
diagnosis and opined that appellant’s left ear hearing loss could be due to occupational or
recreational noise exposure.
A December 21, 2011 magnetic resonance imaging scan of the brain revealed a small
arachnoid cyst at the upper lateral edge of the left sylvian fissure. It showed no acute
parenchymal findings.
OWCP referred appellant to Dr. Douglas McCorkle, a Board-certified otolaryngologist,
for a second opinion evaluation. In a June 5, 2012 report, Dr. McCorkle reviewed a statement of
accepted facts, the medical records and history and conducted a physical examination. He noted
that appellant had a long history of noise exposure and did not wear ear protection.
Dr. McCorkle opined that, the fact that appellant’s hearing was perfect on the right side and there
was no history of a specific event that led to left-sided hearing loss, the hearing loss was not
employment related. He concluded that appellant had a mild, asymmetric sensorineural hearing
loss in the left ear of unknown cause, unrelated to his federal employment.
By decision dated July 12, 2012, OWCP denied the claim on the finding that
Dr. McCorkle negated a causal relationship between appellant’s hearing loss and factors of his
federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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
3

5 U.S.C. §§ 8101, 8193.

2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee 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; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical 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.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, 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 and resolve the conflict in medical evidence.8 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.9
ANALYSIS
The Board finds that OWCP properly referred appellant to Dr. McCorkle, a Boardcertified otolaryngologist, for a second opinion evaluation. On June 5, 2012 Dr. McCorkle found
that appellant had a mild, asymmetric sensorineural hearing loss in the left ear of unknown cause
and unrelated to his federal employment. He indicated that appellant had a long history of noise
exposure and did not wear ear protection. Dr. McCorkle concluded, however, that the hearing

4

OWCP regulations define an occupational disease or illness 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).
5

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

6

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

7

See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).

8

5 U.S.C. §§ 8101-8193, 8123(a); see B.C., 58 ECAB 111 (2006).

9

R.C., 58 ECAB 238 (2006).

3

loss was not employment related on the basis that appellant had perfect hearing on the right side
with no history of a specific event that caused left-sided hearing loss.
In support of his claim, appellant submitted reports from Dr. Hwang, a Board-certified
otolaryngologist, who diagnosed left ear moderate sensorineural hearing loss. Dr. Hwang opined
that based on appellant’s past work history there was a very high probability that the left-sided
hearing loss was due to prolonged exposure to noise from firearms at work.
The Board finds a conflict in medical opinion between appellant’s attending physician,
Dr. Hwang, found a high medical probability that appellant’s hearing loss was causally related to
prolonged noise exposure at work. OWCP’s second opinion physician, Dr. McCorkle, found the
record devoid of a specific event causing left-sided hearing loss, such that it was not employment
related, despite the history of noise exposure and lack of ear protection. The Board finds that the
reports of Drs. Hwang and McCorkle are of equal weight and rationale thereby necessitating a
referral to an impartial medical specialist for resolution.10 Under section 8123(a) of FECA,
OWCP must resolve this conflict by referring appellant, together with the medical record and a
statement of accepted facts, to an impartial medical specialist.11 After this and such other
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical opinion evidence.

10

Supra note 8.

11

See D.P., Docket No. 10-121 (issued July 23, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: July 5, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

5