United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
U.S. POSTAL SERVICE, WESTCHESTER
COUNTY PROCESSING & DISTRIBUTION
CENTER, White Plains, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1358
Issued: August 5, 2021

Case Submitted on the Record

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

JURISDICTION
On July 1, 2020 appellant, through counsel, filed a timely appeal from a February 7, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted July 3, 2019 employment incident.
FACTUAL HISTORY
On July 5, 2019 appellant, then a 42-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on July 3, 2019 he sustained neck, shoulder, and back
injuries as the result of a motor vehicle accident while in the performance of duty.
In a July 16, 2019 development letter, OWCP informed appellant that the only evidence
received in support of his traumatic injury claim was his pay rate information and a position
description. It informed him of the type of factual and medical evidence necessary to establish his
claim and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
respond.
OWCP subsequently received an emergency room work/school excuse note dated July 5,
2019 from a physician assistant indicating that appellant had been seen and treated in the
emergency room on July 3, 2019. It also received a July 11, 2019 note from Dr. Cynthia E.
Meyers, a Board-certified internist, indicating that appellant had an appointment that day and a
July 12, 2019 note from Dr. Nicolas El-Khoury, a Board-certified physiatrist, requesting appellant
be excused from work for the period July 12 through August 9, 2019.
In a letter dated July 24, 2019, the employing establishment controverted appellant’s claim,
asserting that he had not established an injury. A July 3, 2019 accident report was also submitted.
In a July 12, 2019 report, Dr. El-Khoury related that appellant was seen for low back, neck,
left shoulder, and right shoulder pain. Under history of illness, he noted that on July 3, 2019 the
employing establishment motor vehicle that appellant was driving was hit on the side by another
vehicle. Physical examination findings listed included cervical, lumbar, and bilateral shoulder
tenderness. Dr. El-Khoury diagnosed cervical and lumbar spine myofascial pain syndrome and
bilateral shoulder, cervical, and lumbar pain, which he attributed to the accepted July 3, 2019
employment incident.
In an August 9, 2019 disability note, Dr. Thomas S. Mathew, a Board-certified physiatrist,
reported that appellant was disabled from work for the period August 9 through 16, 2019.
By decision dated August 20, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a diagnosis causally related to the accepted
July 3, 2019 employment incident.
On August 28 and September 17, 2019 appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. In support of his
request, appellant submitted an August 16, 2019 report by Dr. El-Khoury. Dr. El-Khoury
reiterated the examination findings, pain complaints, and injury history noted in his July 12, 2019
report and diagnosed cervical and lumbar myofascial pain syndrome and bilateral shoulder pain
with possible internal derangement. He opined that there was a direct causation between the
accepted July 3, 2019 employment incident and appellant’s diagnosed conditions.
2

A telephonic hearing was held on January 6, 2020. By decision dated February 7, 2020,
the hearing representative affirmed OWCP’s August 20, 2019 decision as modified to find that the
medical evidence of record was sufficient to establish a diagnosed medical condition. The claim
remained denied, however, as the medical evidence of record was insufficient to establish a
diagnosed medical condition based on objective findings causally related to the accepted July 3,
2019 employment incident. Thus, OWCP’s hearing representative found that appellant failed to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between a diagnosed condition and the accepted employment incident must be based on a complete
factual and medical background.9 Additionally, the physician’s opinion must be expressed in
terms of a reasonable degree of medical certainty, and must be supported by medical rationale,

3

Id.

4

C.D., Docket No. 20-0762 (issued January 13, 2021); F.H., Docket No.18-0869 (issued January 29, 2020); J.P.,
Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
5

K.G., Docket No. 20-1242 (issued January 13, 2021); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

C.D., supra note 4; P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued
September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.G., supra note 5; T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued
January 9, 2019); John J. Carlone, 41 ECAB 354 (1989).
8

C.D., supra note 4; T.H., 59 ECAB 388, 393-94 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

K.G., supra note 5; M.V., Docket No. 18-0884 (issued December 28, 2018)

3

explaining the nature of the relationship between the diagnosed condition and the specific
employment incident.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted July 3, 2019 employment incident.
In support of his claim, appellant provided reports dated July 12 and 16, 2019 by Dr. ElKhoury, diagnosing cervical and lumbar myofascial pain syndrome and bilateral shoulder pain
with possible internal derangement due to the accepted July 3, 2019 employment incident. The
Board has held that pain is a symptom, not a firm diagnosis.11 While Dr. El-Khoury provided an
affirmative opinion that supported causal relationship, he did not offer a rationalized medical
explanation to support his opinion. Medical evidence that provides a conclusion without a
rationalized medical explanation regarding the cause of an employee’s condition, is of limited
probative value on the issue of causal relationship.12 Thus, these reports are insufficient to meet
appellant’s burden of proof.
The record also contains a July 11, 2019 note from Dr. Meyers, indicating that appellant
had an appointment that day; and a July 12, 2019 note by Dr. El-Khoury, requesting that appellant
be excused from work for the period July 12 through August 9, 2019. The Board has held,
however, that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13 These reports, therefore,
are insufficient to establish appellant’s claim.
Appellant also submitted a July 5, 2019 work/school excuse note by a physician assistant,
noting that appellant had been seen in the emergency room on July 3, 2019. The Board has held,
however, that certain healthcare providers such as physician assistants are not considered
physicians as defined under FECA. Consequently, their medical findings and/or opinions will not
suffice for purposes of establishing entitlement to FECA benefits.14 Thus, this evidence is of no
probative value and is also insufficient to establish appellant’s claim.

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

T.H., Docket No. 19-1891 (issued April 3, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018). See
P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
12

A.H., Docket No. 18-1632 (issued June 1, 2020).

13

See E.P., Docket No. 20-0389 (issued November 2, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
14

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); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3(a)(1) (January 2013); 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); K.G., supra note 5; R.K., Docket No. 20-0049 (issued April 10, 2020) (a physician assistant is not
considered a physician as defined under FECA).

4

As appellant has not submitted rationalized medical evidence sufficient to establish a
diagnosed medical condition causally related to his accepted July 3, 2019 employment incident,
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 medical
condition causally related to the accepted July 3, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2021
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lebanon, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-443
Issued: June 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 31, 2013 appellant filed a timely appeal of a November 5, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim
and a December 11, 2013 nonmerit decision denying reconsideration. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on September 5, 2013, as alleged; and
(2) whether OWCP properly denied appellant’s request for reconsideration on the merits
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2013 appellant, then a 49-year-old rural mail carrier, filed a traumatic
injury claim alleging that she injured her tailbone and lower back when she fell in the
performance of duty on September 5, 2013. In a letter dated September 27, 2013, OWCP
requested that she provide additional factual and medical evidence in support of her claim.
Appellant did not respond and, by decision dated November 5, 2013, OWCP denied her claim
finding that she failed to submit any evidence supporting that she sustained a traumatic injury on
the date alleged.
Appellant requested reconsideration on November 27, 2013 and submitted an x-ray report
dated September 10, 2013 from Dr. Jason K. Roth, a Board-certified radiologist, which
demonstrated no acute osseous injury to the sacrum or coccyx. She also submitted a duty status
report dated September 19, 2013 from a family practitioner2 noting her history of falling while in
the performance of duty. Dr. Roth made a finding of coccyx pain and tenderness and a diagnosis
of coccyx pain.
By decision dated December 11, 2013, OWCP declined to reopen appellant’s claim for
review of the merits on the grounds that the evidence was “irrelevant or immaterial and thus has
no bearing on the issue….” It went on to explain that the report by the physician whose
signature was illegible provided an accurate history but only diagnosed “coccyx pain” which, it
noted, “is a symptom not a diagnosis.” Additionally, OWCP found, “The diagnostic report
indicates that there was no acute identifiable injury to the sacrum or coccyx.”
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
2

The physician’s signature is illegible.

3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

2

whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
Where the claimant files a request for reconsideration, OWCP has the discretion to
conduct a nonmerit review and, if justified, a merit review of the evidence presented by the
claimant in support of a change in a prior OWCP decision.9 The distinction is that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence or argument that meets at least one of the standards enumerated under the applicable
regulation.10 If the reconsideration is granted, the case is reopened and reviewed on its merits.11
Where the request is timely but fails to meet at least one of these standards, OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.12 The
Board has recognized that on occasion OWCP considers or discusses the substantive evidence
offered in support of a claimant’s request for reconsideration (in effect, a merit review) but states
that it has conducted only a nonmerit review.13 When this occurs the Board will also conduct a
merit review.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to submit the necessary medical evidence to
establish a traumatic injury.
Appellant alleged that she fell in the performance of duty and injured her coccyx and low
back. In support of her initial claim, she did not submit any evidence other than her claim form.
Appellant then requested reconsideration and submitted medical evidence. In the December 11,
2013 decision, OWCP stated that it had not reviewed the merits of her claim. However, because
the December 11, 2013 decision was a merit review, the Board may review the merits of this
7

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

8

J.Z., 58 ECAB 529 (2007).

9

20 C.F.R. § 10.608. W.C., 59 ECAB 372 (2008).

10

Id. at § 10.606.

11

D’Wayne Avila, 57 ECAB 642 (2006).

12

M.S., 59 ECAB 690 (2008).

13

C.V., Docket No. 13-912 (issued July 29, 2013) (where ECAB finds that OWCP has conducted a merit review
of the evidence presented by claimant, the Board will assume merit jurisdiction over the claim even if OWCP
identifies its decision as the result of a nonmerit review).
14

D.R., Docket No. 12-617 (issued May 9, 2012) (where OWCP, in a purportedly nonmerit decision, evaluated
the reasons offered by claimant for a refusal of a job offer, the Board determined that OWCP had conducted a merit
review and, on appeal, decided that OWCP had incorrectly terminated appellant’s benefits.)

3

evidence on appeal.15 Upon further examination, the Board finds that OWCP did in fact review
the merits of appellant’s claim.16 OWCP discussed and evaluated the weight of the medical
evidence rather than merely determining whether the evidence was new or relevant.17
In support of her request for reconsideration, appellant submitted medical documentation
including an x-ray report and a form report providing a diagnosis. Dr. Roth examined
appellant’s sacrum and coccyx by x-ray on September 10, 2013 and found no acute osseous
injury. This report is not sufficient to establish a traumatic injury as Dr. Roth did not provide a
diagnosed condition, instead noting the lack of medical findings in support of appellant’s claim.
Appellant also submitted a medical report containing an illegible signature indicating that
it was authored by a family practitioner dated September 19, 2013. However, as the author of
the report cannot be identified as a physician, said report is of no probative value and is thus
insufficient to establish her claim.18
As appellant has not provided medical evidence diagnosing a medical condition which
can constitute the basis for payment of compensation as resulting from her September 5, 2013
employment incident, she has not met her 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 submitted the necessary medical evidence to
establish a traumatic injury sustained in the performance of duty on September 5, 2013, as
alleged. The Board also finds that OWCP’s decision of December 11, 2013 was a merit, rather
than a nonmerit, decision.

15

E.F., Docket No. 12-34 (issued August 3, 2012) (the Board stated: “Although OWCP’s June 2, 2011 decision
purported not to review the merits of appellant’s claim, it finds that this was a decision on the merits. OWCP did
more than provide a background summary of its May 25, 2010 denial, it augmented its previous findings…. As it
addressed the merits of appellant’s claim, the Board has jurisdiction to review the merits.”) D.C., 58 ECAB
620 (2007).
16

OWCP’s Procedure Manual outlines the practical distinction between a substantive merit review and a
nonmerit review which determines whether the request itself is sufficient and provides examples of statements
which involve evaluation of the evidence and are therefore inappropriate to a nonmerit review. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(b)(1) (October 2011).
17

The second issue in this case is moot because the Board finds that a merit review was afforded to appellant.

18

See Merton J. Sills, 39 ECAB 572, 575 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT December 11 and November 5, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed as modified.19
Issued: June 17, 2014
Washington, DC

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

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

19

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, North Little Rock, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-645
Issued: August 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 30, 2012 appellant filed a timely appeal from the January 12, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
10 percent permanent impairment of his left leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP initially accepted that on March 30, 2005 appellant, then a 37-year-old painter,
sustained a lumbar sprain/strain due to lifting a sand bag off a pallet at work. OWCP later found
1

5 U.S.C. §§ 8101-8193.

that appellant also sustained herniated discs at L4-5 and L5-S1 on March 30, 2005 and it
authorized the performance on December 9, 2005 of lumbar laminectomy and fusion surgery at
those levels.2 Appellant received compensation from OWCP for periods of disability.
In a February 16, 2010 report, Dr. Patricia Knott, a Board-certified physical medicine and
rehabilitation physician serving as an OWCP referral physician, determined that appellant had a
10 percent permanent impairment of his left leg under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2009).
Dr. Knott applied the standards of Table 16-12 (Peripheral Nerve Impairment (Lower Extremity
Injury)), beginning on page 534, to find that appellant had three percent impairment due to
sensory loss and seven percent impairment due to motor loss. These values were combined to
equal a total impairment of appellant’s left leg of 10 percent. In a March 26, 2010 report,
Dr. Daniel D. Zimmerman, a Board-certified internist who served as an OWCP medical adviser,
indicated that he agreed with the impairment rating of Dr. Knott.
In a March 30, 2010 award of compensation, OWCP granted appellant a schedule award
for 10 percent permanent impairment of his left leg.
After developing the medical evidence, OWCP updated appellant’s accepted conditions
on November 16, 2010 to include disorder of the left side of his sacroiliac joint.
Appellant claimed entitlement to a higher level of schedule award compensation for his
left leg impairment. In support of his claim, he submitted a January 24, 2011 note in which
Dr. Kenneth M. Rosenzweig, an attending Board-certified orthopedic surgeon, provided an
impairment rating. Dr. Rosenzweig reported that under the sixth edition of the A.M.A., Guides,
appellant had 11 percent impairment of the back and 10 percent impairment of the leg.
In a February 27, 2011 report, Dr. Zimmerman evaluated the January 24, 2011 report of
Dr. Rosenzweig. He indicated that Dr. Rosenzweig did not specify which tables he used, but it
was apparent that he was referencing the Lumbar Spine Regional Grid on pages 570 through 574
of the sixth edition. Dr. Zimmerman noted that Dr. Rosenzweig indicated that the rating was a
class 3 rating without citing how he chose to use what would have to be a “D” value of 21
percent (for the body as a whole), a value which would be considered to be an 11 percent rating
for the back or a 10 percent rating for the leg. Dr. Zimmerman indicated that Dr. Rosenzweig
did not explain why this method of rating would be correct and concluded that there was no
medical evidence in the file which would cause the 10 percent schedule award for the left leg to
be modified.
In a March 4, 2011 decision, OWCP denied appellant’s claim that he has more than a 10
percent permanent impairment of his left leg, for which he received a schedule award. It found
that Dr. Zimmerman properly determined that Dr. Rosenzweig’s impairment calculation was not
well rationalized.
Appellant submitted two different versions of the May 6, 2011 treatment note from
Dr. Rosenzweig. The May 6, 2011 note received by OWCP on May 31, 2011 indicated that
2

OWCP later accepted that appellant sustained complications due to the orthopedic device used in this surgery.

2

appellant was seen in follow up after radiofrequency denervation of the left sacroiliac joint.
Under the portion of the note entitled, “Plan/Recommendation,” he stated that using Table 17-3
on page 559 of the sixth edition of the A.M.A., Guides,3 appellant was a candidate for a six
percent impairment in addition to his previous report, as a result of his sacroiliac dysfunction.
Under the portion of the note entitled, “Plan/Recommendation,” the May 6, 2011 treatment note
received on August 4, 2011 indicated the use of the fourth edition of the A.M.A., Guides and
blank spaces were left in identifying the tables and pages used, as well as the percentage of
impairment.
The case file was forwarded to Dr. Zimmerman for his review of the new medical
evidence. In an August 22, 2011 report, Dr. Zimmerman concluded that the two May 6, 2011
notes of Dr. Rosenzweig were of little value regarding appellant’s left leg impairment.
Dr. Rosenzweig did not include a thorough history of appellant’s medical condition, including
physical examination findings, and therefore, the notes could not be utilized in determining an
impairment rating for radicular residuals due to a lumbar spine condition. Dr. Zimmerman noted
that a whole person rating would not represent an impairment rating for the lumbar spine based
on radicular residuals.
In an August 26, 2011 decision, OWCP denied modification of its March 4, 2011
decision.
Appellant submitted a November 28, 2011 report in which Dr. Rosenzweig stated that,
after back surgery, he developed increasing back, hip, and leg pain due to sacroiliac dysfunction.
Dr. Rosenzweig stated that appellant had undergone extensive treatment for sacroiliac
dysfunction as a source of leg pain including multiple blocks and eventually a lateral branch
rhizotomy denervating the four sacral branches to the sacroiliac joint. He noted that appellant
asked that he provide this information in support of his schedule award claim. Dr. Rosenzweig
stated that, under Table 17-3 on page 559 of the sixth edition of the A.M.A., Guides, appellant
had a class 2 moderate problem of the pelvis which was equal to a six percent whole person
impairment. He stated, “For clarification, if needed, a six percent whole person impairment as a
result of a sacroiliac dysfunction corresponds to a 14 percent lower extremity impairment.”
Dr. Rosenzweig indicated that the objective findings with respect to the sacroiliac complaint
included plain radiographs and a magnetic resonance imaging scan test of the pelvis performed
on October 6, 2010. He stated that his opinions were based on objective findings, subjective
complaints and response to treatment.
In a December 26, 2011 report, Dr. Zimmerman, again serving as an OWCP medical
adviser, stated that he had reviewed the case file, including the November 28, 2011 report of
Dr. Rosenzweig. He noted that the November 28, 2011 report did not contain any examination
findings regarding the lumbosacral spine and the lower extremities. Dr. Zimmerman indicated
that all ratings offered as whole person ratings can be converted to ratings of the lower
extremities using Table 16-10 on page 530 of the sixth edition of the A.M.A., Guides. He
indicated, however, that the fact that the conversion table is in the A.M.A., Guides does not allow
the whole person rating to automatically represent a lower extremity rating. Dr. Zimmerman
3

The table appearing on page 559 actually is Table 17-1 rather than Table 17-3.

3

stated that for a lower extremity rating to be considered for schedule award purposes due to the
accepted condition at the lumbar level, the rating must be based on examination findings and a
history consistent with radicular residuals of the lumbar spine condition and the lumbar operative
procedures diagnosed. He stated that the rating recommended in the November 28, 2011 report
of Dr. Rosenzweig did not require a revision of the schedule award appellant received for 10
percent left leg impairment.
In a January 12, 2012 decision, OWCP denied modification of its August 26, 2011
decision, noting that the November 28, 2011 report of Dr. Rosenzweig was not sufficiently well
rationalized to establish that appellant was entitled to additional schedule award compensation.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
ANALYSIS
OWCP accepted that, due to a March 30, 2005 lifting incident at work, appellant
sustained a lumbar sprain/strain, herniated discs at L4-5 and L5-S1, complications due to the
orthopedic device used in his authorized back surgery and disorder of the left side of his
sacroiliac joint. In a March 30, 2010 award of compensation, OWCP granted appellant a
schedule award for 10 percent permanent impairment of his left leg. Appellant claimed
entitlement to a higher level of schedule award compensation.
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 10 percent permanent impairment of his left leg, for which he received a schedule
award.
In support of his claim for increased schedule award compensation, appellant submitted
January 27, May 6 and November 28, 2011 reports of Dr. Rosenzweig, an attending Boardcertified orthopedic surgeon. In these reports, Dr. Rosenzweig referenced various tables in

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

4

Chapter 17 (The Spine and Pelvis) of the sixth edition of the A.M.A., Guides.8 He variously
provided impairment ratings relating to the whole person, back and left leg.9 In his
November 28, 2011 report, Dr. Rosenzweig indicated that appellant had 14 percent lower
extremity impairment.
Each of these reports was evaluated by Dr. Zimmerman, a Board-certified internist who
served as an OWCP medical adviser, and the Board notes that Dr. Zimmerman properly
determined, in reports dated February 27, August 22 and December 26, 2011, that
Dr. Rosenzweig’s impairment ratings are of little probative value regarding the extent of
appellant’s leg impairment. Dr. Zimmerman correctly pointed out that Dr. Rosenzweig did not
adequately explain why he chose to apply the various tables found in Chapter 17, which relate to
the spine and the pelvis, to evaluate appellant’s leg impairment, nor did Dr. Rosenzweig explain
the manner in which these tables were applied. He also noted that Dr. Rosenzweig did not
provide adequate findings on physical examination and diagnostic to explain how work-related
injury to appellant’s back caused impairment in his left leg.
For these reasons, appellant did not meet his burden of proof to establish that he has more
than a 10 percent permanent impairment of his left leg, for which he received a schedule award.10
He 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.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 10 percent permanent impairment of his left leg, for which he received a schedule
award.

8

In one of the two notes dated May 6, 2011, Dr. Rosenzweig referenced the fourth edition of the A.M.A., Guides,
but the sixth edition is the relevant edition for evaluating appellant’s impairment. See supra note 7.
9

See J.Q., 59 ECAB 366 (2008) (neither FECA nor the regulations provide for a schedule award for loss of use of
the back or to the body as a whole).
10

On appeal, appellant asserted that his work-related sacroiliac condition was not addressed by physicians until
November 2010. He would have the burden to submit a rationalized medical report explaining how his work-related
conditions contributed to his leg impairment, but he did not submit sufficient medical evidence to show that he has
more than a 10 percent impairment of his left leg.

5

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, SEATTLE EAST
DELIVERY & DISTRIBUTION CENTER,
Redmond, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-270
Issued: August 16, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal of a September 17, 2009 decision
of the Office of Workers’ Compensation Programs that denied his request for reconsideration of
the merits of his claim. Because more than 180 days elapsed between the issuance of the most
recent merit decision of December 2, 2008 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without further merit review under 5 U.S.C. § 8128(a).
On appeal, appellant contends that, in light of the medical evidence, it was unreasonable
for the Office not to reconsider and reverse the prior decision denying his claim.

FACTUAL HISTORY
On July 24, 2008 appellant, then a 47-year-old mail processor, filed a claim for an
occupational disease. He noted a multi-year history of periodic migraine headaches. Appellant
alleged that, while at work on June 23, 2008, he experienced a severe and ongoing sense of
dizziness and loss of balance which he later learned was due to photosensitivity from exposure to
bright lighting in his workplace. He went to the hospital and while there, he began to develop a
migraine headache.
In an August 28, 2008 report, Dr. D. Gregory Gorman, a Board-certified neurologist,
noted that appellant has been under his care since June 24, 2008. He advised that appellant had
classical migraine with aura and transformed migraine with migraine equivalent of dizziness.
Dr. Gorman noted triggers include bright artificial lights. He noted that, while attempting to
work the prior Thursday, appellant’s exposure to bright lights caused him problems and he left
after one hour. Dr. Gorman stated, “In view of the above it seems medically necessary that his
work be configured so that he is not in an environment of artificial bright light.”
In a decision dated December 2, 2008, the Office denied appellant’s claim for
compensation, finding that the medical evidence did not establish that the claimed migraine
condition was related to the established work-related exposure.
On September 3, 2009 appellant requested reconsideration. When he returned to work,
he experienced migraine episodes that prevented him from working. Appellant noted that, when
he was absent from work, he recovered, but when he returns to work, he again experiences
headaches. He submitted results of a normal June 9, 2009 videonstagmography (VNG) report, a
“fairly normal” computed tomography (CT) conducted on June 9, 2009 (noting a small polyp in
the left maximillary sinus of questionable significance) and a July 7, 2009 magnetic resonance
imaging scan of his head that was reported as normal.
In a December 12, 2008 report, Dr. Gorman noted that appellant had been off work since
August and had no further migraines or dizziness. He advised that appellant had classic migraine
with aura, transformed migraine. Dr. Gorman identified stackable triggers, including working
the midnight shift with fluorescent lighting. He suggested that appellant could go back to work
for two hours a day for two weeks, then four hours a day for two weeks, followed by six hours a
day for a week. Assuming all went well, a return to full employment would be made.
In a May 20, 2009 report, Dr. Roger Zundei, an otolaryngologist, opined that appellant
had some chronic vertigo of unclear etiology. It was most likely migraneous in nature.
Dr. Zundei recommended keeping a food diary to see if there was any correlation of his vertigo
symptoms with a particular food. In a June 9, 2009 report, he noted that appellant’s CT and
VNG tests were normal. Dr. Zundei opined that it was very likely that appellant’s headaches and
his vertigo episodes were secondary to migraine process.
In an August 26, 2009 report, Dr. Steven Singer, a Board-certified neurologist, stated that
appellant was treated for a severe chronic headache disorder which had become particularly
severe and disabling during the past year. Appellant had a major evaluation and treatment
program, but continued to suffer severe and frequent headaches with other problems such as

2

vertigo and extreme light sensitivity. Dr. Singer noted that these problems are not uncommon
with severe headache patients. He found that appellant was unable to work at the employing
establishment in his usual environment because the indoor fluorescent lights had a marked
triggering effect on his symptoms. Dr. Singer recommended altering appellant’s work situation
so that he could work in an environment which would not increase chronic pain issues.
In a September 2, 2009 report, Dr. Janine R. Cooley, a Board-certified family
practitioner, noted that appellant was under her care. Appellant had been on leave from work
since June 2008 because of an incident of headaches and vertigo triggered by lighting at work.
He still experienced headaches and vertigo triggered by fluorescent lights requiring routine use
of Valium. Dr. Cooley advised that appellant was unable to work at the employing
establishment due to the lighting in the work environment.
In a September 17, 2009 decision, the Office denied appellant’s request for
reconsideration without reviewing the merits of the case.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.3 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.4
ANALYSIS
On appeal, appellant made various arguments regarding the merits of his claim.
However, as noted, because more than 180 days elapsed between the most recent merit decision
dated December 2, 2008 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of the claim.5 The only issue before the Board is whether the Office properly denied
appellant’s request for reconsideration of the merits of his claim.

1

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.607(a).

4

Id. at § 10.608(b).

5

Id. at §§ 501.2(c) and 501.3(d)(2).

3

Appellant did not make any new argument that the Office erroneously applied or
interpreted a specific point of law; nor did he advance a relevant legal argument not previously
considered by the Office. However, he submitted a new report by Dr. Gorman. This report,
however, largely represented a restatement of Dr. Gorman’s earlier findings and conclusions and
is therefore repetitive of reports that were considered in the Office’s prior merit decision.
Evidence that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.6 The only additional information in
Dr. Gorman’s report was work restrictions and these are not relevant to the issue at hand, i.e.,
whether appellant has provided medical evidence establishing a causal relationship between his
headaches and dizziness and his federal employment.
Dr. Zundei did not relate appellant’s symptoms to his federal employment. He suggested
that appellant keep a food diary to determine if there was a correlation between his symptoms
and certain food groups. The Board has held that the submission of evidence which does not
address the particular issue involved in the case does not constitute a basis for reopening the
claim.7 Appellant’s diagnostic tests were normal and did not provide any statements with regard
to causal relationship. Accordingly, none of this evidence is sufficient to warrant further merit
review of the case.
Drs. Cooley and Singer attributed the lighting at work as the cause for appellant’s
symptoms. Dr. Cooley noted that appellant had a history of migraines and he went to the
emergency room on June 23, 2009 with headaches and vertigo triggered by the lighting at work
requiring medication. She also noted that appellant has been unable to work at the employing
establishment due to headaches and vertigo resulting from fluorescent lighting at the work.
Dr. Singer advised that appellant was unable to work at the employing establishment in his usual
environment because the indoor fluorescent lights had a marked triggering effect on his
symptoms. The reports of Drs. Cooley and Singer are new medical reports relevant to the issue
of causal relation. They are sufficient for a merit review of appellant’s claim. The Board has
held that the requirement for reopening a claim for merit review does not include the requirement
that a claimant must submit all evidence which may be necessary to discharge his or her burden
of proof. Instead, the requirement pertaining to the submission of evidence in support of
reconsideration only specifies that the evidence must be relevant and pertinent and not
previously considered by the Office.8
The Office abused its discretion by refusing to reopen appellant’s claim for further
review on the merits under 5 U.S.C. § 8128(a). The case will be remanded for further merit
review. Following such development as necessary, the Office shall issue a merit decision on
appellant’s claim.

6

See C.N., 60 ECAB ___ (Docket No. 08-1569).

7

See David J. McDonald, 50 ECAB 185 (1998).

8

See Helen E. Tschantz, 39 ECAB 1382 (1988).

4

CONCLUSION
The Board finds that the Office abused its discretion when it denied appellant’s request
for reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2009 is set aside and the case is remanded for
further consideration consistent with this opinion.
Issued: August 16, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1004
Issued: March 28, 2018

Case Submitted on the Record

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

JURISDICTION
On April 7, 2017 appellant, through counsel, filed a timely appeal from a January 20, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of total disability beginning
April 13, 2015 causally related to her November 20, 2014 employment injury.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

On appeal counsel asserts that the January 20, 2017 decision is contrary to fact and law.
FACTUAL HISTORY
On November 25, 2014 appellant, then a 45-year-old wage and hour investigator, filed a
traumatic injury claim (Form CA-1) alleging that on November 20, 2014 she injured her left knee
and right ankle at work when she fell from a stool while getting files from a cabinet. She stopped
work on the date of injury. OWCP adjudicated this claim under File No. xxxxxx390.
Appellant was seen in an emergency room on the date of injury. Dr. Paul Weygandt, an
emergency medicine physician, diagnosed mechanical fall. A brain computerized tomography
(CT) scan demonstrated no evidence of acute intracranial abnormality. A CT scan of the cervical
spine revealed no acute fracture or subluxation and multilevel degenerative changes within the
cervical spine with moderate canal stenosis and mild neural foraminal stenosis. X-ray of the
lumbar spine, sacrum, and coccyx showed no fracture or malalignment with mild degenerative
disease at L3-4 and L4-5.
In November 24, 2014 reports, Dr. Kaihua Kevin Lai, a Board-certified internist, noted that
appellant fell from a two-foot stool at work. Following examination, he diagnosed ankle sprain,
back strain, contusion of buttock, knee sprain, and neck sprain. Dr. Lai advised that appellant was
totally disabled and should follow up with an orthopedist.
Dr. Michael J. Hejna, a Board-certified orthopedic surgeon, began treating appellant on
December 2, 2014 at which time he described the employment injury and appellant’s complaints
of generalized pain, most significant in her neck and low back. He described physical examination
findings and diagnosed mild left knee and right ankle sprains, and cervical and lumbar sprains.
Dr. Hejna advised that appellant not work.
On January 14, 2015 OWCP accepted right ankle sprain, contusion of buttock, left knee
sprain, and neck and lumbar sprains. Appellant received continuation of pay (COP) through
January 4, 2015 and wage-loss compensation beginning January 5, 2015.
A February 5, 2015 cervical spine magnetic resonance imaging (MRI) scan showed mild
spondylotic changes, particularly from C3-4 through C6-7 with no cervical fracture or subluxation.
On February 11, 2015 Dr. Hejna noted his review of the MRI scan. He advised that the fall likely
aggravated appellant’s cervical spondylosis, and indicated that she could return to sedentary work.
On March 3, 2015 Dr. Hejna reiterated his recommendation that appellant could return to
sedentary work.
On February 23, 2015 Dr. Lai noted appellant’s continued complaints of neck, back, knee,
ankle, and bilateral shoulder pain. He reviewed the cervical MRI scan and indicated that appellant
could not ambulate due to pain, unsteady gait, and obesity. Examination demonstrated joint pain,
but no musculoskeletal symptoms. Dr. Lai additionally diagnosed morbid obesity, unsteady gait,
osteoarthritis at multiple sites, and cervical facet syndrome. He advised that he did not have much
to offer appellant and recommended orthopedic care.
On March 6, 2015 the employing establishment offered appellant a limited-duty
assignment as a wage and hour investigator. The job offer noted that, based on the information
2

provided by her physician, she could perform all the duties identified in her position description.
Physical requirements of the modified position were no lifting, pushing, or pulling greater than 10
pounds; no repeated bending or twisting; no climbing or working at heights; no kneeling or
squatting; no over the shoulder work or play; may stand/walk 15 minutes per hour; and seated
work/play only. There were no restrictions of right or left hand use or on driving. The record also
includes a position description for appellant’s regular job as a wage and hour investigator
indicating that the work was primarily sedentary with some bending, stretching, and light lifting.
In reports dated March 10 and 11, 2015, Dr. Reem Bitar, Board-certified in anesthesiology
and pain medicine, related that appellant had an epidural steroid injection in May 2014, and that
she continued to complain of cervical spine pain on and off until she fell at work on November 20,
2014, which resulted in multi-joint pain and headaches with occasional numbness in hands and
feet. He noted that she was using a walker. Examination demonstrated limited cervical spine
range of motion and intact sensory examination of the upper extremities. Straight leg raising was
negative. Dr. Bitar diagnosed accidental fall, ankle sprain, back strain, cervical facet syndrome,
contusion of buttock, knee sprain, morbid obesity, neck strain, osteoarthritis at multiple sites, and
unsteady gait. He found appellant totally disabled.
On March 26, 2015 Dr. Sean A. Salehi, a Board-certified neurosurgeon, noted the history
of injury and appellant’s complaints of knee, ankle, neck, and low back pain, and bladder and
bowel incontinence. He found tenderness and decreased range of motion on cervical and lumbar
spine examination. Dr. Salehi reviewed the cervical spine MRI scan and diagnosed cervical
spondylosis and low back pain. He advised that appellant’s neck pain was a result of aggravation
of the preexisting cervical spondylosis and that, due to bladder and bowel complaints, she needed
a lumbar spine MRI scan.
After first refusing the offered position, appellant later accepted the job on March 26, 2016.
She returned to part-time modified duty on March 30, 2015 and began full-time work on
April 1, 2015. On April 29, 2015 appellant filed a claim for intermittent compensation (Form CA7) for the period April 5 to 18, 2015, which included eight hours of leave without pay on April 13,
2015 for a swollen knee. From April 14 to May 16, 2015, she received intermittent wage-loss
compensation for medical and therapy appointments. Appellant received no wage-loss
compensation under this claim after May 16, 2015. She began four hours of modified duty on
May 20, 2015 and took sick and annual leave for the remaining four hours daily. Appellant
continued to file claims for compensation.3
In a partial report dated April 14, 2015, Dr. Hejna advised that, due to ongoing pain in
various locations, most significantly in the right shoulder and left knee, he suggested that
appellant’s work hours be reduced to four hours daily. On April 30, 2015 Dr. Hejna advised that
appellant could not work on April 13, 14, and 24, 2015 due to pain and swelling of the left knee.
In a May 12, 2015 report, Dr. Salehi noted his review of the diagnostic studies.4 He
reiterated his diagnoses and commented that appellant’s mechanical low back pain could be due
3

In May 8, 2015 letters, OWCP informed appellant of the evidence needed to establish her compensation claims.

4
An April 16, 2015 thoracic and lumbar spine MRI scan showed no evidence of acute fracture and mild
degenerative changes, primarily in the lower lumbar spine.

3

to facet arthropathy, but there was no significant pathology to warrant surgery, noting no cord
compression or cauda equina to explain her incontinence. Dr. Salehi noted that she was at
maximum medical improvement (MMI) with regard to spinal issues and needed no further spine
treatment. He referred her back to Dr. Hejna due to her orthopedic complaints.
In a May 12, 2015 treatment note, Dr. Hejna noted his review of appellant’s right shoulder
and left knee MRI scans.5 He reported that he advised appellant that, based on these findings, her
ongoing symptoms were not related to the employment injury. Dr. Hejna opined that appellant
was at MMI with respect to the employment injury and could return to modified duty.
On May 27, 2015 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence occurred on May 21, 2015, relating that she could not kneel or squat and could not
file items from cabinets above or below the waist line, and could not lift anything over eight
pounds. Appellant indicated that she had constant neck, shoulder, and back pain, and arm, hand,
and leg weakness. She also maintained that she had not been furnished approved ergonomic
assistance. The employing establishment indicated that an ergonomic assessment of appellant’s
workstation was done on April 2, 2015 that included eight recommendations on how she could
improve her work area, none of which she had done.
Appellant submitted evidence from Dr. Lai that included May 22, 2015 reports, noting her
complaint that her work duties aggravated her neck, back, and shoulders, caused by the
November 20, 2014 employment injury. Dr. Lai noted that appellant’s work was quite sedentary
for several hours daily and that she would like to get compensation because she felt she was unable
to work due to significant knee, back, and neck pain, and morbid obesity. Dr. Lai reiterated
findings and diagnosed back and neck pain, muscle spasm, and osteoarthritis of the knee, and
cervical and lumbar spine. He recommended pain management and orthopedic evaluation. On
June 19, 2015 Dr. Lai reviewed the MRI scans. He advised that appellant’s complaints of chronic
neck and back pain, unsteady gait with morbid obesity were primarily related to her degenerative
joint disease. Dr. Lai opined that he was not sure that her pain was related to the work injury,
indicating that she had no clear evidence of injury, but that the pain was aggravated by her work.
He advised that appellant could not sit, stand, or walk for very long and had limitations of no
repetitive bending, stooping, squatting, pushing, or pulling, with a weight limitation of 10 pounds.
Dr. Lai recommended a physical performance test, pain medication, and an orthopedic evaluation
of her right shoulder. In an undated handwritten note, received on June 26, 2015, he advised that
appellant should work four hours of light duty daily without kneeling, squatting, climbing, walking
on heights, or repetitive bending, and should be able to use a cane. Dr. Lai indicated that this was
due to morbid obesity, arthritis, and muscle spasm aggravated by her work.
In July 2015, appellant filed two additional traumatic injury claims. In a claim adjudicated
by OWCP under File No. xxxxxx039, she alleged that on July 15, 2015 she injured her left
shoulder, both hands, and both feet. In a claim adjudicated under File No. xxxxxx524, appellant

5
An April 30, 2015 right shoulder MRI scan was suspicious for a right acromioclavicular (AC) joint injury with
capsular strain or possible tear, and moderate tendinosis. No fracture was seen, and x-rays were recommended. A
May 4, 2015 MRI scan of the left knee was negative for internal derangement. Mild nonspecific knee joint effusion
and a small Baker’s cyst were seen.

4

alleged that on July 29, 2015 she suffered chest pains at work.6 She stopped work on July 29, 2015
and did not return.
On August 5, 2015 Dr. Lai noted that appellant had recently visited an emergency room
for stress. Appellant also complained of severe pain. Dr. Lai found her totally disabled until she
saw a spine specialist and psychiatrist. In an August 17, 2015 attending physician’s report (Form
CA-20), he referenced OWCP File No. xxxxxx039 and advised that appellant was totally disabled
until further notice and referred her to a psychiatrist.
In an August 17, 2015 report, Dr. Kern Singh, a Board-certified orthopedist, noted that on
November 20, 2014 appellant fell off a stool at work. He described her subsequent pain and
treatment and reported that she had a history of axial neck complaints since 2013. Dr. Singh
reviewed cervical, thoracic, and lumbar spine MRI scans and provided examination findings. He
diagnosed cervical muscular strain, lumbar muscular strain, and L3 to L5 lumbar stenosis.
Dr. Singh advised that appellant could return to work without restrictions and was at MMI with
regard to her cervical and lumbar spines.
On August 17, 2015 Dr. Nikhil Verma, Board-certified in orthopedic surgery and sports
medicine, noted seeing appellant for right shoulder and left knee complaints. He reviewed left
knee and left shoulder MRI scans. Following physical examination, Dr. Verma diagnosed right
shoulder AC separation/arthrosis and left knee osteoarthritis and injected the right AC joint and
left knee. On August 24, 2015 his office called OWCP regarding appellant’s right shoulder
condition and was told that it had not been accepted. On September 9, 2015 Dr. Verma opined
that appellant had AC joint pain with secondary impingement and discussed surgery.
On August 31, 2015 Dr. Lai advised that appellant should be off work due to multiple joint
pain, arthritis, and an unsteady gait. He indicated that she could return to modified duty on
December 1, 2015. On September 21, 2015 Dr. Lai cleared appellant for right shoulder
arthroscopic surgery.
On September 28, 2015 Dr. Verma noted that appellant’s surgery was not authorized.
After examining her left knee, he advised that underlying knee arthritis did not necessarily warrant
arthroplastic surgery and that her restrictions were unchanged.
A telephone memorandum dated October 14, 2015 indicated that appellant called OWCP
and requested that the CA-7 claims for compensation she submitted under File Nos. xxxxxx524
and xxxxxx039 be transferred to the instant, accepted claim, File No. xxxxxx390.
On October 27, 2015 appellant informed OWCP that she worked four hours daily from
May 22 to July 29, 2015 when she stopped and did not return. On October 27, 2015 OWCP also
received information including a statement about the July 29, 2015 chest pain claim, one page of
a notice of recurrence (Form CA-2a) dated June 8, 2015, which indicated that the original injury

6
Appellant filed appeals with the Board from OWCP decisions in both File No. xxxxxx039 and File No.
xxxxxx524. These have been assigned Docket Nos. 17-1469 and 17-1738 respectively, and shall adjudicate
separately.

5

occurred on October 28, 2013,7 and e-mail correspondence regarding appellant’s requests for
assistive devices. An amended limited-duty assignment dated May 11, 2015 indicated that
appellant would do her regularly assigned duties and other duties within her physician’s
restrictions. It included physical limitations on filing, advised that she use a cane while
ambulating, and indicated that she was limited to four hours of work daily.
In an October 5, 2015 report, Dr. Asokumar Buvanendran, Board-certified in
anesthesiology and pain medicine, described the November 20, 2014 work injury. He evaluated
appellant for neck and arm pain and advised that she was also undergoing evaluation for bariatric
surgery. Following examination, Dr. Buvanendran diagnosed cervical radiculopathy, cervical
spondylitis with radiculitis, and paresthesias and pain of both arms.
On October 29, 2015 appellant requested that her claim be expanded. The correspondence,
however, did not include a list of specific additional conditions. Rather, it included a diary
beginning on April 14, 2015. Appellant reported that on that date the medical management nurse
assigned to her case evaluated her workstation. She then indicated that on May 21, 2015 she
worked eight hours, but was in tremendous pain. Appellant described her subsequent medical
appointments.
Appellant also forwarded an April 6, 2015 ergonomic assessment of her workstation,
which indicated that adjustments were made. It included suggestions for appellant and noted that
the employing establishment should provide her a new keyboard and headset for telephone use.
Appellant also forwarded April 16 and May 21, 2015 e-mails and February 6, 2015 correspondence
regarding a November 3, 2014 reasonable accommodation request she made.8 The correspondence
indicated that, upon her return to work, she would be allowed additional breaks, and that her
request for ergonomic equipment had been forwarded to the appropriate office. A request to
telework for no more than one day per week up to March 30, 2015 was granted by the employing
establishment.
Appellant also submitted a May 14, 2014 treatment note from Dr. Bitar, which predated
the November 20, 2014 work injury. Dr. Bitar noted appellant’s complaints of cervical and
bilateral shoulder pain. Diagnoses included AC joint arthritis, a bulging disc at C6-7,
radiculopathy, right shoulder pain, and cervical spine facet arthritis.
In June 12 and August 5, 2014 treatment notes, Dr. Shing Yen, a Board-certified
orthopedist, discussed appellant’s neck and shoulder pain. On August 5, 2014 he advised that
appellant should stay off work.
Dr. Buvanendran performed cervical epidural steroid injections on November 4 and
December 2, 2015, and January 6, 2016. On December 22, 2015 he noted appellant’s complaints
of neck, bilateral shoulder, and bilateral knee pain. Dr. Buvanendran diagnosed cervical radicular

7

There is no record that appellant filed a claim with OWCP for an October 28, 2013 employment injury.

8
The specific condition necessitating accommodation was not identified and the correspondence did not indicate
that it was work related.

6

pain. In a partial report dated January 8, 2016, he noted her complaint of low back pain radiating
into both legs.
In a January 11, 2016 treatment note, Dr. Verma noted appellant’s complaints of right arm
weakness and difficulty raising her arm. He described examination findings of AC joint and biceps
tendon tenderness and diagnosed right shoulder AC joint separation and arthritis. Dr. Verma noted
that surgery was scheduled for January 19, 2016.9
On January 14, 2016 Dr. Lai reported appellant’s complaints of neck, back, and buttock
pain. He observed that appellant ambulated with difficulty and her joints were arthritic without
effusion. Dr. Lai diagnosed history of contusion of buttock, cervical facet syndrome, accidental
fall, back strain, knee sprain, low back pain, and osteoarthritis, multiple sites. He advised that
appellant had reached MMI and discharged her from his care.
On January 28, 2016 Dr. Buvanendran noted appellant’s complaints of neck and low back
pain. He diagnosed paresthesia and pain of both upper extremities, cervical spondylitis with
radiculitis, and cervical radiculopathy. On February 10, 2016 Dr. Buvanendran performed lumbar
epidural steroid injection.
In a February 5, 2016 report, Patricia Merriman, Ph.D., a clinical psychologist, noted
complaints of anxiety and distress caused by neck, right arm, and low back pain that followed a
November 2014 fall at work. She diagnosed panic disorder, without agoraphobia, and major
depressive disorder, single episode, moderate. Dr. Merriman recommended medication and
therapy. On February 19, 2016 she noted that appellant continued to struggle with anxiety and
distress resulting from pain and related stressors.
On February 15, 2016 Dr. Craig McAsey, a Board-certified orthopedic surgeon, noted
appellant’s complaints of diffuse, generalized body pain. He noted generalized tenderness of
examination of the knees and hips. Dr. McAsey diagnosed bilateral hip trochanteric bursitis and
generalized knee pain without mechanical symptoms.
On March 4, 2016 Dr. Buvanendran noted appellant’s continued complaints of pain. He
additionally diagnosed panic disorder without agoraphobia and major depressive disorder.
Dr. Buvanendran performed lumbar steroid injection on March 9, 2016.
On March 9, 2016 Dr. Verma noted that appellant was status post right shoulder
arthroscopy with distal clavicle excision. He advised that her recovery was good.
By decision dated March 31, 2016, OWCP found that appellant was entitled to wage-loss
compensation for a total of 28 hours for April 6 to 10, 14, and 16, 2015, for which she was paid
on May 15, 2015.
By decision dated April 1, 2016, OWCP found that appellant had not established a
recurrence of disability beginning April 13, 2015 because the medical evidence of record was
insufficient to establish that she was totally disabled due to a material change or worsening in the

9

On January 13, 2016 appellant requested that OWCP authorize right shoulder and left knee surgery.

7

accepted conditions of contusion of buttock, and sprains of right ankle, left knee, neck, and lumbar
region.
On April 5, 2016 counsel requested a hearing with OWCP’s Branch of Hearings and
Review from the March 31, 2016 decision. On April 11, 2016 he requested a hearing from the
April 1, 2016 decision. Evidence submitted included a January 13, 2015 report from
Dr. Mitchell J. Weiss, a chiropractor, who noted appellant’s complaints of continued head, neck,
arm, leg, and ear pain since the November 20, 2014 work injury. Dr. Weiss recommended a
cervical MRI scan and electrodiagnostic study.
In an April 20, 2016 report, Dr. Verma noted that appellant was doing well following her
right shoulder surgery. He noted her complaints of left shoulder and left knee pain. Examination
findings included a positive left shoulder impingement sign with left overhead elevation, and a
mall effusion of the left knee with limited knee range of motion due to pain. Dr. Verma
recommended left shoulder and left knee MRI scans. An April 27, 2016 left shoulder MRI scan
revealed partial-thickness undersurface tears of the supraspinatus, subscapularis and supraspinatus
tendinosis, moderate AC joint osteoarthritis, tendinosis of the intra-articular portion of the biceps
tendon, and capsulitis at the rotator cuff interval. Dr. Verma reviewed the left shoulder MRI scan
that day. He also indicated that a left knee MRI scan showed small effusion with patellar
chondromalacia and possible medial meniscal tear.10 Dr. Verma noted that appellant would
proceed to left shoulder arthroscopic surgery and left knee injection.
In progress notes dated March 4 to July 15, 2016, Dr. Buvanendran reiterated his findings
and conclusions. He performed a lumbar epidural steroid injection on May 9, 2016 and cervical
epidural injections on June 10, August 24, and September 14, 2016. On September 16, 2016
Dr. Buvanendran reported that, although appellant continued to have radiating cervical pain, she
felt she was ready to return to work. He noted that right-sided hip pain had worsened over the last
three months. Dr. Buvanendran diagnosed cervical radiculopathy, cervical spondylitis with
radiculitis, and paresthesia and pain in both upper extremities.
Dr. Merriman submitted March 11 to September 16, 2016 treatment notes in which she
saw appellant in follow up for pain management and counseling. She reiterated her diagnoses.11
A hearing was held on held on November 8, 2016 regarding the April 1, 2016 decision
denying appellant’s claim that she sustained a recurrence of disability beginning April 13, 2016.
Appellant testified that she had trouble with her neck prior to the November 20, 2014 employment
injury. She indicated that, following her return to full duty, at the advice of Dr. Hejna, she began
part-time work on April 14, 2015 due to constant neck, lower back, and knee pain. Appellant
10
A copy of a 2016 left knee MRI scan is not found in the record before the Board. The Board also notes that
Dr. David Weiss, a Board-certified physiatrist, noted on March 23, 2016 that he had seen appellant that day for an
electrodiagnostic study. A copy of that study is also not found in the record before the Board.
11

On February 18, 2016 appellant claimed a schedule award (Form CA-7). On May 11, 2016 Dr. Neil Allen, Boardcertified in internal medicine and neurology, advised that, under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, appellant had eight percent left arm impairment, one
percent right arm impairment, nine percent left knee impairment, and one percent right ankle impairment. The
schedule award issue remains under development by OWCP.

8

stated that her neck continued to hurt too much to work full time. She indicated that she was
working part time at the time of the hearing and described her current medical care. The hearing
representative advised appellant of the type of evidence needed to support her total disability
claim.12
Appellant subsequently submitted a September 16, 2016 report from Dr. Buvanendran
which discussed her claimed July 17, 2015 and July 29, 2015 work injuries. Dr. Buvanendran
diagnosed accidental fall, neck sprain, back strain, cervical facet syndrome, history of contusion
of buttock, ankle sprain, shoulder sprain, knee pain, unsteady gait, low back pain, right knee
contusion, knee sprain, right wrist sprain, right elbow tendinitis, bilateral trochanteric bursitis,
anxiety as acute reaction to exceptional stress, and work-related stress. He provided work
restrictions and recommended ergonomic accommodations and telework. In progress notes dated
November 11 and December 30, 2016, Dr. Buvanendran noted seeing appellant for complaints of
neck, shoulder, and low back pain. He described physical examination findings and reiterated his
diagnoses.
In progress notes dated November 1 to December 6, 2016, Dr. Herriman noted that
appellant had returned to part-time work for four hours daily.13 She described appellant’s
complaint of anxiety and depression related to her work situation and limitations, her counselling
sessions, and reiterated her diagnoses.14
By decision dated January 20, 2017, an OWCP hearing representative affirmed the April 1,
2016 decision that denied appellant’s claim for a recurrence of disability beginning April 13, 2015
as the medical evidence of record did not establish that appellant was no longer able to perform
her full-time limited-duty position.15
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 had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.16 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
12
A hearing from the March 31, 2016 decision, denying compensation for specific dates in April 2015, was held
on November 21, 2016.
13
The record in this claim does not indicate the exact date appellant returned to work, although she filed a claim
for intermittent compensation beginning October 3, 2016.
14

OWCP received a recurrence claim, signed by appellant on December 2, 2016 and indicating an October 28,
2013 original injury. See supra note 7. Appellant indicated that a recurrence occurred on November 18, 2016 when
she had acute neck, lower back, and bilateral shoulder pain while reading at her desk.
15

A February 3, 2017 decision issued by OWCP’s Branch of Hearings and Review from the March 31, 2016
decision has not been appealed to the Board.
16

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

9

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 or her established physical limitations.17
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 light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.18
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of establishing that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.19
ANALYSIS
The Board finds that appellant did not establish a recurrence of disability on or after
April 13, 2015 causally related to the accepted conditions of contusion of buttock, right ankle and
left knee sprains, and cervical and lumbar sprains caused by a November 20, 2014 work injury.
Appellant did not establish that the nature and extent of these injury-related conditions changed so
as to prevent her from continuing to perform her sedentary modified assignment.
A partially disabled claimant who returns to a light-duty job has the burden of proving that
he or she cannot perform the light duty, if a recurrence of total disability is claimed.20 The issue
of whether the claimant has disability from performing a modified position is primarily a medical
question and must be resolved by probative medical evidence.21 Appellant’s burden includes
submitting rationalized medical opinion supporting that the disabling condition is causally related
to the employment injury.22 Where no such rationale is present, the medical evidence is of
diminished probative value.23 Medical evidence submitted by appellant to support her recurrence
claim should reflect a correct history and should offer a medically sound explanation by a
physician of how the modified duties she was performing on and April 13, 2015 physiologically

17

Id.

18
Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
19

S.S., 59 ECAB 315 (2008).

20

See William M. Bailey, 51 ECAB 197 (1999).

21

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

22

Supra note 19.

23

Mary A. Ceglia, 55 ECAB 626 (2004).

10

caused or aggravated the accepted conditions such that she had increased disability.24 Appellant
submitted no such evidence in this case.
After the November 20, 2014 work injury, appellant received appropriate COP and wageloss compensation. On February 11, 2015 Dr. Hejna advised that she could return to sedentary
work. On February 23, 2015 Dr. Lai advised that he did not have much to offer appellant and
recommended orthopedic care. Dr. Hejna reiterated his conclusion that appellant could return to
work on March 3, 2015. On March 30, 2015 appellant returned to a modified, sedentary position.
Lifting, pushing, and pulling were limited to 10 pounds with no repeated bending, twisting,
climbing, working at heights, kneeling, squatting, or over the shoulder work. Appellant filed
claims for compensation for intermittent periods of disability thereafter, including eight hours
missed on April 13, 2015. Her regular position as a wage and hour investigator is sedentary in
nature. Beginning on May 18, 2015, other than working a few full-time days, she worked
approximately four hours daily. Appellant received intermittent wage-loss compensation through
May 16, 2015 for medical and therapy appointments. She stopped work on July 29, 2015 and did
not return until October 2016.
The record also supports that appellant had preexisting cervical and shoulder conditions.
In a May 14, 2014 treatment note that predated the employment injury, Dr. Bitar noted appellant’s
complaints of cervical and bilateral shoulder pain and diagnosed AC joint arthritis, a bulging disc
at C6-7, radiculopathy, right shoulder pain, and facet arthritis of the cervical spine. In June 12 and
August 5, 2014 treatment notes, Dr. Yen also discussed appellant’s neck and shoulder pain. In
March 2015 reports, Dr. Bitar noted treating appellant the previous year for cervical spine pain.
On March 26, 2015 Dr. Salehi advised that appellant’s neck pain was caused by an aggravation of
preexisting cervical spondylosis. Neither Dr. Bitar nor Dr. Salehi, however, commented on
appellant’s ability to work at that time. Likewise, Dr. McAsey did not comment on appellant’s
ability to work.25 The Board has long held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.26
In a partial report dated April 14, 2015, Dr. Hejna advised that, due to ongoing pain in
various locations, most significantly in the right shoulder and left knee, appellant should only work
four hours daily. On April 30, 2015 he advised that appellant could not work on April 13, 14, and
24, 2015 due to pain and swelling of the left knee. Pain is a symptom, not a compensable medical
diagnosis.27 A physician’s opinion on causal relationship between a claimant’s disability and an
employment injury is not conclusive simply because it is rendered by a physician. To be of
probative value, the physician must provide rationale for the opinion reached. Where no such
24

S.S., supra note 19.

25

Dr. Mitchell J. Weiss also did not comment regarding appellant’s work capabilities. Moreover, under section
8101(2) of FECA, the term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the Secretary. 5 U.S.C. § 8101(2); see D.S., Docket No. 09-0860 (issued
November 2, 2009). Dr. Weiss did not diagnose a subluxation by x-ray.
26

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

27

C.B., Docket No. 09-2027 (issued May 12, 2010).

11

rationale is present, the medical opinion is of diminished probative value.28 Dr. Hejna, who had
advised as early as February 11, 2015 that appellant could return to sedentary work, and reiterated
this opinion on March 3, 2015. While in the partial report dated April 14, 2014 he indicated that
appellant should reduce her work hours, he did not explain how or why this was caused by the
accepted conditions. This brief and incomplete opinion is insufficient to meet appellant’s burden
of proof that she could only work four hours a day. Moreover, on May 12, 2015 Dr. Hejna advised
that appellant’s ongoing symptoms were not related to the November 20, 2014 employment injury,
and opined that she was at MMI with respect to the work injury and could return to modified duty.
Thus, Dr. Hejna’s opinion is clearly unsupportive of appellant’s claimed disability after that date.
In a May 12, 2015 report, Dr. Salehi reviewed diagnostic studies and commented that
appellant’s mechanical low back pain could be due to facet arthropathy, but there was no
significant pathology to warrant surgery. He indicated that appellant needed no further spine
treatment. As he did not clearly relate any increased disability to the accepted conditions,
Dr. Salehi’s opinion is of limited probative value and insufficient to establish appellant’s claim.
Likewise, on August 17, 2015 Dr. Singh advised that appellant could return to work without
restrictions with regard to her cervical and lumbar spine. He did not comment on the accepted
buttock contusion or right ankle and left knee sprains.29
In an undated, handwritten note, received by OWCP on June 5, 2015, Dr. Lai advised that
appellant should work four hours of restricted duty daily and indicated that this was due to morbid
obesity, arthritis, and muscle spasm aggravated by her work. On May 22, 2015 he reported
appellant’s complaint that her duties at work aggravated her neck, back, and shoulders, caused by
the November 20, 2014 employment injury. Dr.Lai, however, advised that appellant’s work was
quite sedentary and that she felt she should get compensation because she was unable to work due
to significant knee, back, and neck pain, and morbid obesity. On June 19, 2015 he opined that he
was not sure that appellant’s pain was related to the employment injury, indicating that she had no
clear evidence of injury, but that the pain was aggravated by her work. Other reports from Dr. Lai
did not specifically address causal relationship for the period of disability at issue.
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is claimed
is causally related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical and
factual background of the claimant.30 When considered as a whole, Dr. Lai’s reports are
inconsistent. While he noted that appellant’s position is sedentary, he exhibited no knowledge of
her exact work duties and offered no consistent explanation as to why she is totally or partially
disabled due to the November 20, 2014 employment injury. Dr. Lai did not provide medical
rationale explaining how her sedentary work duties aggravated her conditions resulting in

28

T.M., Docket No. 08-0975 (issued February 6, 2009).

29

See supra note 26.

30

Patricia J. Glenn, 53 ECAB 159 (2001).

12

increased disability on or after April 13, 2015. His opinion is, therefore, insufficient to meet
appellant’s burden of proof.
Dr. Verma began treating appellant in August 2015, nine months after the November 20,
2014 employment injury. He mainly treated appellant for shoulder conditions which have not been
accepted under this claim. Although Dr. Verma advised that appellant had left knee osteoarthritis,
this has not been accepted,31 and he did not advise that an accepted condition caused increased
disability. While Dr. Verma reported on April 27, 2016 that a left knee MRI scan demonstrated a
possible meniscal tear, the report of this study is not found in the record before the Board and he
did not explain how this was related to the November 20, 2014 employment injury.32 Thus, the
evidence does not support that the November 20, 2014 work injury, accepted for left knee strain,
caused additional left knee conditions.
Other medical reports are of limited probative value as they do not contain a physician’s
opinion relating appellant’s disability beginning April 13, 2015 to the accepted conditions.33
When an employee returns to light-duty work, he or she has the burden to establish a
recurrence of disability due to the employment-related conditions, and that he or she cannot
perform such light duty.34 The employee must show a change in the nature of the accepted
condition or a change in the light-duty job requirements.35 Appellant submitted no such evidence
in this case. Where, as here, a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of FECA.36
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 failed to establish a recurrence of total disability beginning
April 13, 2015 caused by a November 20, 2014 employment injury

31
See supra note 28 (where a claimant claims that a condition not accepted or approved by OWCP was due to an
employment injury, the claimant bears the burden of proof to establish that the condition is causally related to the
employment injury through the submission of rationalized medical evidence).
32

Furthermore, a May 4, 2015 MRI scan of the left knee was negative for derangement.

33

S.E., supra note 26.

34

William D. Bailey, supra note 20.

35

K.C., Docket No. 09-1666 (issued August 25, 2010).

36

See A.M., Docket No. 09-1895 (issued April 23, 2010).

13

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2018
Washington, DC

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

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 15-1409
Issued: December 9, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On June 16, 2015 appellant filed a timely appeal from a May 26, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) which found that he abandoned his
request for an oral hearing. The Board docketed the appeal as No. 15-1409.
The Board has duly considered the matter and finds that the case is not in posture for
decision. On October 14, 2014 OWCP denied appellant’s traumatic injury claim. Appellant
requested a telephonic oral hearing before the Branch of Hearings and Review on
October 16, 2014. He indicated his street address as 10350 Plumtree Circle. On March 25, 2015
OWCP issued a notice of hearing, stating that the hearing would be held on May 5, 2015. It
mailed the notice to a differently numbered street address. Appellant did not appear at the
hearing, and on May 26, 2015 OWCP found that he abandoned his request for a hearing.
The record evidence reveals that OWCP’s March 25, 2015 notice of hearing was not sent
to appellant’s proper address. Section 10.617(b) of OWCP’s regulations requires OWCP to mail

a notice of the time and place of the hearing to appellant at least 30 days before the scheduled
date.1 OWCP has the burden of proving that it mailed a notice of a scheduled hearing to
appellant.2 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary,
that a notice properly mailed to an individual in the ordinary course of business was received by
that individual. This presumption arises where it appears from the record that the notice was
properly addressed and duly mailed.3 The presumption of receipt does not apply where a notice
is sent to an incorrect address.4 In the instant case, the notice of hearing was sent to an incorrect
address. Accordingly, the Board finds that appellant was not provided proper notice of his
hearing under OWCP’s regulations.5 The case will be remanded to OWCP for rescheduling of
the requested oral hearing.
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.

1

20 C.F.R. § 10.617(b). Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by OWCP is entitled to receive a hearing upon writing to the
address specified in the decision within 30 days of the date of the decision for which a hearing is sought. 5 U.S.C.
§ 8124(b)(1); 20 C.F.R. § 10.616(a).
2

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

3

See M.U., Docket No. 09-526 (issued September 14, 2009).

4

Id.

5

20 C.F.R. supra note 1; N.W., Docket No. 11-1026 (issued November 25, 2011).

2

Issued: December 9, 2015
Washington, DC

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

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

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

3