United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, WESTMONT POST
OFFICE, Westmont, IL, Employer
__________________________________________

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

Docket No. 20-0237
Issued: October 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 11, 2019 appellant, through counsel, filed a timely appeal from a
September 23, 2019 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 that his left patellar
tendinitis is causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On April 9, 2018 appellant, then a 25-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that his physicians and physical therapists told him that his patellar
tendinitis was caused by his federal employment duties. He indicated that he first became aware
of his condition June 1, 2017 and its relationship to factors of his federal employment on
January 10, 2018. Appellant had stopped work on January 6, 2018.
In a February 20, 2018 progress note, Dr. Gregory H. Dairyko, a Board-certified
orthopedic surgeon, indicated that appellant worked as a mail carrier and reported that he may
walk 10 to 11 miles a day. He noted that appellant reported that he sustained an injury to the left
knee in June 2017, for which appellant had received a cortisone injection and had performed a
home exercise program. Dr. Dairyko noted examination findings and indicated that x-ray films of
the left knee revealed evidence of Osgood-Schlatter’s disease with preservation in the medial,
lateral, and patellofemoral joint space. He provided an assessment of acute left knee pain and left
knee pain, unspecified chronicity, and recommended a course of physical therapy. An
accompanying February 20, 2018 x-ray of appellant’s left knee revealed no acute radiographic
findings or significant degenerative changes.
Appellant also submitted a March 5, 2018 medical clearance form and surgical worksheet,
in which Dr. Adam Yanke, a Board-certified orthopedic surgeon, cleared appellant for a left knee
arthroscopic debridement and possible chondroplasty and patellar tendon injection. The diagnoses
for the procedure were listed as left knee patellar cartilage defect with patellar tendinitis and
articular cartilage defect.
In a progress note dated April 6, 2018, Dr. Dairyko held appellant off work for four weeks.
In a May 11, 2018 development letter, OWCP advised appellant that additional factual and
medical evidence was necessary to establish his claim. It requested that he submit additional
medical evidence, including a rationalized report from his physician addressing causal relationship
between a diagnosed medical condition and the identified employment factors. OWCP further
provided a questionnaire for appellant’s completion to substantiate the factual allegations of his
claim. It afforded him 30 days to submit the necessary evidence.
On July 3, 2018 appellant completed OWCP’s development questionnaire and explained
that his left knee pain was due to walking and climbing stairs in all kinds of weather and carrying
a mail bag in in the performance of his mail carrier duties. He also submitted a copy of his position
description.
OWCP continued to receive medical reports. In a January 11, 2018 report, Dr. Siva
Krishman, a Board-certified family practitioner, reported that appellant injured his left knee about
five or six years prior playing basketball and, since then, physical activity caused light pain. She

2

noted that he worked as a letter carrier and had developed a lot of pain and swelling with activity.
A primary diagnosis of chronic left knee pain was provided. Dr. Krishman held appellant off
work. In a February 13, 2018 light-duty request, she noted his restrictions.
A June 12, 2018 magnetic resonance imaging (MRI) scan of appellant’s left knee revealed
mild edema of the infrapatellar fat pad, mild quadriceps, and proximal patellar tendinosis without
tear. No acute meniscal or ligamentous injury was seen.
In medical reports dated April 6, May 11 and 29, and June 19, 2018, Dr. Dairyko noted
appellant’s MRI scan findings. He diagnosed acute pain of left knee and patellar tendinitis of left
knee. Dr. Dairyko also provided work excuse and medical restrictions notes dated April 6, 17, and
24, May 11 and 29, and June 19, 2018.
By decision dated July 25, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed left
knee condition was causally related to the accepted employment factors.
On August 12, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was later converted to a review of the written record at
counsel’s request. No additional evidence was submitted.
By decision dated February 25, 2019, an OWCP hearing representative affirmed the
July 25, 2018 decision.
On March 19, 2019 OWCP received appellant’s undated request for reconsideration. In a
March 4, 2019 report, Dr. Henry Legaspi, an osteopath Board-certified in physiatry, opined that
appellant’s left chronic patellar tendinosis could have been a result of his work as a mail carrier
given the required repetitive knee flexion and extension.3
On June 26, 2019 appellant, through counsel, requested reconsideration. OWCP continued
to receive medical evidence.
In support of his request, appellant submitted an April 17, 2019 report by Dr. Legaspi, who
indicated that appellant’s pain at the inferolateral corner of the left patella began while he was
working as a letter carrier. His job required walking approximately 8 to 14 miles per day,
sometimes on uneven surfaces. Dr. Legaspi advised that patellar tendinosis is a chronic overuse
injury that is usually seen in younger patients who perform sports activities that involve repetitive
flexion and extension of the knees and typical symptoms are felt at the inferior pole of the patella.
He opined that, given the repetitive nature of appellant’s job, and no other reported activities that
can cause patellar tendinosis such as sports or running, it was “entirely possible that appellant’s
patellar tendinosis was caused by his occupation as a mailman.”

3

Appellant appealed OWCP’s February 25, 2019 decision to the Board on April 1, 2019; however, he subsequently
withdrew his request. By order dated June 25, 2019, the Board dismissed the appeal at the request of appellant’s
counsel. Order Dismissing Appeal, Docket No. 19-0956 (issued June 25, 2019).

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By decision dated September 23, 2019, OWCP denied modification of its February 25,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,5 that an injury was sustained while 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.6 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.7
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

10
W.R., Docket No. 19-0460 (issued May 18, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); I.J.,
59 ECAB 408 (2008).

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left
patellar tendinitis is causally related to the accepted factors of his federal employment.
In her January 11, 2018 report, Dr. Krishman provided an assessment of chronic pain of
the left knee. She reported a history of appellant injuring his left knee approximately five to six
years prior playing basketball, that he worked as a mail carrier, and that he developed a lot of pain
and swelling with activity. Dr. Krishman’s report is of no probative value as she did not provide
a firm diagnosis of a particular medical condition.12 The Board has explained that pain is a
symptom and not a compensable medical diagnosis.13 Dr. Krishman did not provide a specific
diagnosis of a medical condition of the left knee.14 Additionally, while she noted that appellant
worked as a letter carrier and had developed a lot of pain and swelling with activity, she did not
discuss his job duties or explain whether his work duties caused or contributed to his left knee
condition.
A medical opinion must explain how the implicated employment factors
physiologically caused, contributed to, or aggravated the specific diagnosed conditions.15 Thus,
Dr. Krishman’s report is insufficient to establish appellant’s claim.
In his February 20, 2018 report, Dr. Dairyko noted that appellant may walk 10 to 11 miles
a day as a mail carrier. In that, report and in subsequent reports dated from April 6 to June 19,
2018, he diagnosed left knee pain and patellar tendinitis of left knee. While Dr. Dairyko noted
that appellant walked several miles a day as a mail carrier, he failed to specifically address whether
appellant’s work duties caused or aggravated the diagnosed medical condition of patellar tendinitis
of left knee. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.16
Dr. Yanke’s March 5, 2018 medical clearance form and surgical worksheet, which cleared
appellant for a left knee arthroscopic debridement and possible chondroplasty and patellar tendon
injection, is of no probative value as he did not offer an opinion about the cause of appellant’s need

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
A.S., Docket No. 19-1955 (issued April 9, 2020).
12

See A.R., Docket No. 19-1560 (issued March 2, 2020).

13

T.G., Docket No. 19-0904 (issued November 25, 2019).

14

See T.H., Docket No. 19-1891 (issued April 3, 2020).

15

K.G., Docket No. 18-1598 (issued January 7, 2020).

16

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

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for surgery. As noted, 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.17
Medical reports from Dr. Legaspi dated March 4 and April 17, 2019, indicated that
appellant’s left chronic patellar tendinosis could have been a result of his work as a letter carrier
given the required repetitive knee flexion and extension and no other reported activities that could
cause patellar tendinosis. However, Dr. Legaspi did not explain how appellant’s prior left knee
conditions, which the record reflects as Osgood-Schlatter’s disease, or a history of a prior left knee
injury due to playing basketball five to six years prior, related to appellant’s current left knee
condition.18 A well-rationalized opinion is particularly warranted when there is a history of
preexisting conditions.19 While the opinion supporting causal relationship does not have to reduce
the cause or etiology of a disease or a condition to an absolute certainty, the opinion must be one
of reasonable medical certainty and not speculative or equivocal in character.20 As Dr. Legaspi’s
opinion regarding causal relationship was speculative and conclusory, it is insufficient to meet
appellant’s burden of proof to establish his claim.21
Appellant also submitted the results of diagnostic testing. The Board has held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.22
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s patellar tendinitis of left knee and the accepted employment factors, the Board finds
that he has not met his burden of proof.
On appeal counsel asserts that OWCP failed to apply the proper standard of causation and
failed to give due deference to the findings of the attending physician. As explained above,
however, the medical evidence of record is insufficient to establish causal relationship between
appellant’s patellar tendinitis of left knee and the accepted employment factors. Consequently,
appellant 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.

17

Id.

18

P.S., Docket No. 17-1013 (issued November 1, 2017).

19

D.M., Docket No. 16-0346 (issued June 15, 2017).

20

C.H., Docket No 19-0409 (issued August 5, 2019).

21

P.A., Docket No. 18-0559 (issued January 29, 2020).

22

K.S., Docket No. 19-1623 (issued March 19, 2020); J.M., Docket No. 18-0853 (issued March 9, 2020).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left
patellar tendinitis is causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, MIDTOWN POST
OFFICE, Rochester, NY, Employer
__________________________________________

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

Docket No. 07-474
Issued: May 3, 2007

Case Submitted on the Record

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

JURISDICTION
On December 11, 2006 appellant filed a timely appeal from a May 3, 2006 decision of
the Office of Workers’ Compensation Programs denying her claim for a traumatic injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on May 17, 2004.
FACTUAL HISTORY
On May 17, 2004 appellant, then a 38-year-old window distribution clerk, filed a
traumatic injury claim alleging that on that date she had dizziness and a swollen eye due to being
struck by a wire cage in the right eye.
In an authorization of treatment (Form CA-17), dated May 18, 2004 the employing
establishment authorized treatment at Strong Occupational Environmental Medicare. The injury

was described as occurring when a tip of a metal basket hit appellant near her eye which caused
dizziness and inability to stand up. The authorizing official was Diane Galeazzo, RN.
On May 19, 2004 Jerry Horn, a physician’s assistant, diagnosed head trauma injury and a
right eye condition.1 He noted that appellant was hit in the right eye on May 17, 2004.
Appellant was released to light duty as of May 19, 2004.2
In office visit notes dated May 20, 2004, Nancy W. O’Rourke, N.P., Ph.D, reported that
appellant was struck in the right eye on May 17, 2004. She related that appellant had dizziness
and bleeding. Ms. O’Rourke indicated that her two head scans had been performed which were
negative and that “[appellant] has since developed headache.” A physical examination revealed
right-sided headache and “resolving ecchymosis to the right upper eyelid.”
In a May 24, 2004 treatment note, Ms. O’Rourke, diagnosed head injury with right eye
contusion and postconcussive headache.
On December 17, 2004 the Office received May 17, 2004 computed tomography (CT)
scans of the head and orbits, which were both negative. The reports both reported trauma and
head pain.
On November 17, 2005 the Office received Rochester General emergency room reports,
progress notes and CT scans dated May 17, 2004.3 Someone in the emergency room, with an
illegible signature, noted that appellant was struck in the right eye at work and that she got dizzy
when she stood up. A physical examination revealed a contusion to the right lateral brow area
and recommended CT scans of the orbits and head.
In a letter dated March 27, 2006, the Office requested additional information from
appellant regarding the claimed May 17, 2004 injury. It explained that a physician’s opinion was
crucial to her claim and allotted appellant 30 days within which to submit the requested
information.
On April 12, 2004 appellant submitted Rochester General emergency room reports,
progress notes and CT scans dated May 17, 2004.
By decision dated May 3, 2006, the Office denied appellant’s claim on the grounds that
she failed to establish fact of injury. The Office found that the employment incident occurred as
alleged, but the medical evidence “did not provide a firm diagnosis resulting from” the May 17,
2004 incident.

1

The word after eye is illegible.

2

An amended copy changed the return to work date to May 20, 2004.

3

The emergency doctor’s signature is illegible.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.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 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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
ANALYSIS
The Office accepted that appellant was struck by a wire cage in the right eye on
May 17, 2004. However, the medical evidence is insufficient to establish that the employment
incident caused an injury. The medical reports of record do not establish that being struck by a
wire cage in the right eye at work caused a personal injury on May 17, 2004. The medical
evidence contains no firm diagnosis, no rationale and no explanation of the mechanism of injury
regarding the incident on May 17, 2004.
The record contains a May 17, 2004 report from someone in the Rochester General
emergency room, whose signature is illegible, who noted that appellant was struck in the right
eye at work and that she got dizzy when she stood up. A physical examination revealed a
contusion to the right lateral brow area and CT scans of the orbits and head were requested.
However, the Board has held that medical reports lacking proper identification cannot be
considered as probative evidence in support of a claim.8 As it is unclear who signed the May 17,
2004 report, this medical report is insufficient to support appellant’s claim.

4

5 U.S.C. §§ 8101-8193.

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Linda I. Sprague, 48 ECAB 386 (1997)
(medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship).
6

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Lois E. Culver (Clair L. Culver),
53 ECAB 412 (2002).
7

Sedi L. Graham, 57 ECAB ___ (Docket No. 06-135, issued March 15, 2006); M.W., 57 ECAB ___ (Docket No.
06-749, issued August 15, 2006).
8

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

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Appellant submitted reports by Mr. Horn, a physician’s assistant, and Ms. O’Rourke, a
nurse practitioner. The Board notes that this evidence is not probative medical evidence as the
persons completing the reports are not physicians as defined in 5 U.S.C. § 8101(2).9
Thus, the Board finds that the medical evidence presented is insufficient to establish that
appellant sustained an injury when she was struck by a wire cage on May 17, 2004.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a compensable injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 3, 2006 is affirmed.
Issued: May 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

Thomas O. Bouis, 57 ECAB ___ (Docket No. 06-692, issued June 7, 2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS
ADMINISTRATION MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1817
Issued: January 22, 2008

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 June 28, 2007 appellant, through counsel, filed a timely appeal of a June 1, 2007
nonmerit decision of the Office of Workers’ Compensation Programs, denying her request for
reconsideration. Because more than one year has elapsed between the last merit decision dated
May 30, 2006 and the filing of the appeal, the Board lacks jurisdiction to review the merits of her
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 31, 1995 appellant, then a 52-year-old registered nurse, filed a traumatic injury
claim alleging that on July 26, 1995 she experienced pain in both buttocks while bending down
at a patient’s bedside. She stopped work on July 28, 1995. The Office accepted the claim for a

bulging disc at L4-5. By decision dated March 18, 1998, the Office found that appellant’s actual
earnings as a limited-duty registered nurse fairly and reasonably represented her wage-earning
capacity.
On June 29, 2004 appellant filed a claim alleging that she sustained a recurrence of
disability on June 4, 2004. She stopped work on June 4, 2004. Appellant indicated that on
December 29, 2003 she hurt her right arm when she fell while trying to sit in a rolling chair. She
received a tetanus shot at the employee health unit.1 On the claim form, appellant’s supervisor
stated that, following treatment, appellant returned to duty with no loss time from work or
medical expenses.
By decision dated October 14, 2004, the Office denied appellant’s claim. It found the
evidence of record insufficient to establish that she sustained a recurrence of disability causally
related to her July 26, 1995 employment injury. On October 27, 2004 appellant requested an
oral hearing before an Office hearing representative.
By decision dated May 30, 2006, an Office hearing representative affirmed the
October 14, 2004 decision, as modified. The hearing representative determined that the issue in
the case was not whether appellant sustained a recurrence of disability on June 4, 2004. Instead,
the issue was whether the March 18, 1998 loss of wage-earning capacity determination should be
modified. The hearing representative found that appellant failed to submit rationalized medical
evidence establishing that she sustained a material worsening of her accepted employmentrelated injury and that the evidence of record was not sufficient to warrant modification of the
loss of wage-earning capacity determination.
In a letter dated May 1, 2007, appellant, through counsel, requested reconsideration of the
October 14, 2004 and May 30, 2006 decisions. Counsel contended that, in denying appellant’s
recurrence of disability claim, the Office failed to establish an affirmative defense that
appellant’s current condition and resultant surgery were caused by an intervening cause. He
contended that the evidence of record did not establish that appellant sustained a new injury or
significantly aggravated her accepted employment injury due to the December 29, 2003 incident.
Counsel stated that appellant’s hearing testimony and the medical evidence of record established
that her condition would wax and wane over the years. He noted that he had enclosed an
April 13, 2007 medical report of Dr. Paul Zak, a Board-certified orthopedic surgeon, which
established that appellant’s continuing back problems and resultant surgery were causally related
to the accepted July 26, 1995 employment injury.
By decision dated June 1, 2007, the Office denied appellant’s request for reconsideration.
It found that appellant’s legal argument had been previously addressed and that she did not
submit any new medical evidence. The Office determined that appellant’s reconsideration

1

The record reveals that on July 26, 2004, appellant underwent bilateral decompression lumbar laminectomies at
L3-4, L4-5 and L5 sacrum, a right discectomy at L5 and repair of the L4 Durotomy which were performed by
Dr. Ralph E. Rydell, a Board-certified neurosurgeon. In an August 31, 2004 report, Dr. Rydell opined that
appellant’s recent back pains and lumbar spine disease and resultant surgery were caused by the July 26, 1995
employment injury.

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request neither raised substantive legal questions nor included new and relevant evidence and,
thus, it was insufficient to warrant a merit review of its prior decision.2
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,3 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.4 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.5 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
By letter dated May 1, 2007, appellant, through counsel, disagreed with the Office’s
May 30, 2006 decision, denying modification of its March 18, 1998 loss of wage-earning
capacity determination. The relevant issue is whether appellant met her burden of proof to
establish that modification of the wage-earning capacity decision was warranted due to a
material worsening of her July 26, 1995 employment-related bulging disc at L4-5. The Board
notes that this issue is medical in nature.
In the request for reconsideration, appellant’s counsel contended that she sustained a
recurrence of disability causally related to her accepted employment injury. He contended that
the Office failed to establish that an affirmative defense that appellant experienced an
intervening cause of her current disability. Counsel alleged that appellant’s hearing testimony
and the medical evidence of record established that her back condition would wax and wane over
the years. He related that he was including Dr. Zak’s April 13, 2007 report which established
that appellant’s continuing back problems and resultant surgery were causally related to the
accepted July 26, 1995 employment injury. However, no report accompanied appellant’s

2

The Board notes that the Office issued a decision on June 28, 2007, denying appellant’s June 8, 2007 request for
reconsideration of its May 30, 2006 decision denying modification of its March 18, 1998 loss of wage-earning
capacity determination, after appellant’s filing of an appeal with the Board in this case. It is well established that the
Board and the Office may not have concurrent jurisdiction over the same issue on appeal. 5 U.S.C. § 8101(2).
Therefore, the Board finds that the Office’s June 28, 2007 decision is null and void. Cathy B. Millin, 51 ECAB 331
(2000); Douglas E. Billings, 41 ECAB 880, 895 (1990); Oren E. Beck, 33 ECAB 1551 (1982).
3

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

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

3

request.6 As the issue whether appellant had a material worsening of an employment-related
condition is medical in nature, counsel’s arguments are not relevant. The Board has held that the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.7
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of her request for reconsideration. Further, she did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit review.8
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 22, 2008
Washington, DC

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

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

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

6

The Board notes that Dr. Zak’s April 13, 2007 report was received by the Office on June 21, 2007, after the
issuance of its June 1, 2007 decision. The Board may not consider evidence for the first time on appeal which was
not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit
this evidence to the Office and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
7

Patricia G. Aiken, 57 ECAB __ (Docket No. 06-75, issued February 17, 2006).

8

See James E. Norris, 52 ECAB 93 (2000).

4


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

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

Docket No. 19-0306
Issued: August 9, 2019

Case Submitted on the Record

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

JURISDICTION
On November 27, 2018 appellant filed a timely appeal from a November 21, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on December 4, 2017, as alleged.
FACTUAL HISTORY
On December 20, 2017 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 4, 2017 at 12:00 p.m. he injured his right
ankle while in the performance of duty. He explained that the injury occurred when he stepped on
1

5 U.S.C. § 8101 et seq.

an uneven surface which caused him to fall forward and land on his right hand and knees.
Appellant stopped work on December 5, 2017 and returned on December 12, 2017. He resigned
from the employing establishment effective December 12, 2017.2 On the reverse side of the claim
form, B.S., supervisor customer service, alleged that the injury had not occurred in the performance
of duty. He noted that appellant initially indicated that his injury occurred at home, but
subsequently advised that the injury happened at work.
Evidence received with the claim included December 4 and 8, 2017 notes, which indicated
that appellant was under medical treatment. In a December 4, 2017 report, Dr. Julie Waddell, a
Board-certified family practitioner, noted that appellant was seen for an ankle injury which
appellant indicated occurred at 5:15 a.m. that morning when he stepped over a flower bed and
twisted his right ankle. She diagnosed right ankle sprain, indicated that appellant had weight
restrictions for December 5 and 6, 2017, and that a December 7, 2017 follow-up visit was
scheduled. No further information was provided.
In a December 5, 2017 e-mail to B.S., sent at 12:19 a.m., appellant advised that he injured
his ankle at home that morning. He noted that he had visited an urgent care facility after his shift
and was diagnosed with a sprained ankle. Appellant advised that he would be off work through
December 7, 2017 when he had a follow-up medical appointment.
In a December 20, 2017 statement, S.S., a supervisor, indicated that when appellant came
to get his check on his day off, he told her that he had injured himself at home and not at work.
She noted that she did not remember the date of the conversation.
In a December 26, 2017 unsigned statement, appellant indicated that he had twisted his
ankle after he stepped on uneven ground after delivering a package to a specific address at
approximately 9:30 a.m. on December 4, 2017. He noted that he continued to work after the
incident.
In a development letter dated January 3, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to provide the necessary evidence.
In a series of e-mails dated December 7 and 8, 2017, appellant advised B.S. of his ankle
condition, his follow-up visits, and his work status.
On December 26, 2017 the employing establishment requested that appellant respond to
investigative questions regarding his claimed injury. In relevant part, appellant was asked whether
his earlier responses of advising B.S. in a December 5, 2017 e-mail that he injured his ankle at
home and his response of “no” during his December 12, 2017 employee evaluation to a question
of whether his injury occurred while performing work duties were falsehoods. He responded “yes”
in his December 26, 2017 response.

2
A December 12, 2017 employee evaluation and/or probationary report indicated that appellant was not completing
work as required.

2

In a January 19, 2018 statement, appellant advised that S.S. was the supervisor on duty
when he returned to the station on the evening of December 4, 2017 and that he had informed her
of his injury. He noted that, while sitting across from her, he had located and called an urgent care
facility from his cell phone. Appellant indicated that S.S.’s statement about him picking up his
paycheck was false.3
In a January 21, 2018 OWCP questionnaire response, appellant indicated that his injury
occurred on December 4, 2017 at approximately 9:30 a.m. and that he sought medical treatment at
the urgent care facility across the street from the employing establishment immediately after
leaving work. He noted that his e-mail advising B.S. of his injury was sent shortly after midnight
on December 5, 2017. Appellant explained that he did not report his injury as employment related
because he was concerned about being fired. He indicated that he decided to correctly report his
injury as employment related after he was terminated from his position as his ankle had not healed
and his health insurance ended December 31, 2017.
Appellant also submitted several e-mail and text communications from his private e-mail
account. In a December 4, 2017 text communication sent at 7:57 p.m. to R.G., a supervisor,
appellant indicated that he had injured his ankle on the way out to his car that morning. He noted
that his ankle did not bother him until the last couple hours of work. Appellant indicated that he
was at urgent care and that he was unable to walk on his ankle.
In a December 4, 2017 text communication sent at 1:29 p.m. to L.P., a union officer,
appellant noted that he was pretty sure that he did something to his ankle. He indicated that he
was told that if you are injured during probation that you should say that it occurred at home.
Appellant asked whether he should worry about that and explained that he “biffed it pretty hard
today, and I’m pretty sure I did something to my ankle.” L.P. responded that any reported accident
could lead to him being let go, but technically employees were not fired due to injury. She
indicated that appellant should report the injury if he was hurt.
In a December 16, 2017 e-mail to B.S., appellant advised that he forgot to mention that his
ankle injury occurred while delivering packages. He explained that he had not reported it as
occurring at work because he was afraid of being fired.
In a January 17, 2018 e-mail, L.P. indicated that on December 4, 2017 appellant sent her a
text at approximately 1:29 p.m., inquiring how to report an injury. She noted that he had indicated
that he had injured his ankle.
In a January 18, 2018 e-mail, C.H., a coworker, indicated that appellant had told her on
December 4, 2017 that he had injured his ankle at work that day. He also told her that he did not
want to report it because he thought he would be fired.
In a January 19, 2018 attending physician’s report (Form CA-20), a physician with an
illegible signature, reported a December 4, 2017 date of injury when appellant “stepped wrong.”

3

An image of a credit union checking account of November 29 and December 13, 2017 was provided.

3

The physician diagnosed a right ankle sprain and hand pain and checked the box marked “yes”
indicating that the conditions were caused or aggravated by the described employment activity.
In a January 25, 2018 attending physician’s report (Form CA-20), Dr. Waddell noted the
date of injury as December 4, 2017. She indicated that on December 4, 2017 appellant reported
tripping over a flower bed at home at 5:15 a.m. in the morning and twisting his ankle. On
December 15, 2018 appellant indicated that he actually tripped at 9:30 a.m. while working on
December 4, 2017. Dr. Waddell diagnosed sprain of unspecified ligament of the right ankle. She
indicated that the injury occurred as a result of tripping over a flower bed, but it was unclear as to
whether it occurred at home or at work. Dr. Waddell noted that appellant had been dismissed from
his position.
By decision dated February 7, 2018, OWCP denied appellant’s traumatic injury claim
finding that the factual evidence of record was insufficient to establish that the December 4, 2017
incident occurred in the performance of duty, as alleged. It noted that his contradictory statements
regarding where his injury occurred cast serious doubt on the validity of the claim.
On March 8, 2018 appellant requested an oral hearing before an OWCP hearing
representative, which was held telephonically on September 13, 2018. At the hearing, he indicated
that he was told in training that he could be fired if he reported a work injury while on probation.
Appellant asserted that his text messages with L.P. should be enough to establish that his injury
occurred at work. No new evidence was submitted.
By decision dated November 21, 2018, an OWCP hearing representative affirmed the
February 7, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 period 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 must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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
See J.C., Docket No. 18-1803 (issued April 19, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

4

employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.
The employee has not met his burden of proof to establish the occurrence of an injury when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast serious doubt on an employee’s statements in determining
whether the claim has been established. An employee’s statement alleging that an injury occurred
at a given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on December 4, 2017, as alleged.
Appellant sought medical treatment on December 4, 2017 for his right ankle with
Dr. Waddell, who diagnosed a sprained right ankle. However, the history of injury he related to
Dr. Waddell was that his injury occurred at 5:15 a.m. that morning when he stepped over a flower
bed. Appellant subsequently claimed that his injury occurred at work, at 12:00 p.m. when he
stepped on an uneven surface.
OWCP denied appellant’s claim as there were inconsistencies in the evidence as to whether
the alleged injury occurred in the performance of duty. As noted, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong and persuasive evidence.10 In this case the hearing representative
found and the evidence supports that appellant has alleged two very different versions as to where
and when he sustained his right ankle injury on December 4, 2017. Appellant asserted that he lied
about where the injury occurred because he did not want to get fired as he was in a probationary
status. The Board finds that he has not established that his dishonesty as to the time, place and the
manner of the injury was related to a fear of retaliatory discharge. In fact, the evidence indicates

7

M.M., Docket No. 17-1522 (issued April 25, 2018); John J. Carlone, 41 ECAB 354 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); J.N., Docket No. 18-0675 (issued December 10, 2018); E.H.,
Docket No. 16-1786 (issued January 30, 2017).
9

T.M., Docket No. 17-1194 (issued February 4, 2019); M.J., Docket No. 17-1810 (issued August 3, 2018); S.P.,
Docket No. 10-0431 (issued November 24, 2010); Mary Joan Coppolino, 43 ECAB 988, 991 (1992).
10
See L.D., Docket No. 19-0039 (issued May 7, 2019); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).

5

that soon thereafter appellant voluntarily resigned from the employing establish due to his failure
to complete work assignments during his probationary period.
In his January 2, 2018 statement, appellant explained that, after he was fired, he decided to
correctly report his injury as work related since his ankle had not healed and his health insurance
had ended on December 31, 2017. The Board has held that inconsistent responses cast serious
doubt on the validity of the claim.11
The Board finds that because of the factual inconsistencies of record appellant has not
established that he had an employment-related injury on December 4, 2017, as alleged.
Allegations alone by a claimant are insufficient to establish a factual basis for a claim.12 A claimant
must substantiate such allegations with probative and reliable evidence.13 While appellant
indicated that December 4, 2017 text messages from L.P., which noted his concerns about getting
hurt and fired during probation substantiated his claim, he never specifically related in his text
messages that he was injured at work. Furthermore, while C.H. indicated in her January 18, 2018
e-mail that appellant had informed her that he injured his ankle while working that day, her
statement is of limited probative value as no specific details were provided as to how and when
such alleged injury occurred.14
On appeal appellant argues that he established fact of injury in the performance of duty.
However, given the inconsistencies in the evidence as to where and when the alleged injury
occurred, he has not met his burden of proof to establish that he was injured on December 4, 2017
in the performance of duty, as alleged.
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.

11
See L.L., Docket No. 18-0861 (issued April 5, 2019); Mary A. Payne, Docket No. 00-1615 (issued
March 15, 2002).
12

See generally M.C., Docket No. 18-1354 (issued April 2, 2019); W.F., Docket No. 17-0640 (issued December 7,
2018); Charles E. McAndrews, 55 ECAB 711 (2004).
13

Id.

14

Id.

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on December 4, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2019
Washington, DC

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

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

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

7


/United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Melford V. McCormick, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2084
Issued: July 23, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant, through her attorney, filed a timely appeal from a
September 6, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
a shoulder condition. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established that her claim should be expanded to include a
diagnosed right shoulder condition due to the accepted June 7, 2004 employment injury.

1
2

5 U.S.C. § 8101 et seq.

This case was previously before the Board. In an order dated November 10, 2010, the Board dismissed
appellant’s appeal of a December 1, 2009 decision denying appellant’s recurrence claim, at the request of
appellant’s representative. Docket No. 10-569 (issued November 10, 2010).

On appeal, counsel argued that appellant’s right shoulder condition was caused by the
June 7, 2004 injury. Further, he contends the fact that OWCP paid medical bills related to the
shoulder condition for over six years supports her claim.
FACTUAL HISTORY
On June 7, 2004 appellant, then a 38-year-old mail processor, filed a traumatic injury
claim alleging that she sustained injuries to her neck, back, right leg and the back of her left arm
when she was struck by a box being transported by a power equipment operator on that date. In
an undated statement, she noted that she felt a hard push or bump and while trying to catch her
balance, she landed on her right side to feel impact on her right shoulder.
Appellant was treated by Dr. Arthur R. Turner, a chiropractor. In a June 21, 2004 report,
Dr. Turner stated that appellant’s major symptom was neck pain and headache, which began on
June 7, 2004 when she was injured on the job. He noted that the pain extended across the top of
both shoulders. Examination revealed restricted cervical range of motion with end-point
tenderness, trapezius spasms and palpable tenderness bilaterally, Erb’s point was positive
bilaterally and O’Donoghue maneuver was positive for ligament sprain of the cervical spine.
Dr. Turner’s initial diagnoses were cervical brachial syndrome; cervical degenerative joint
disease (DJD); stiffness and restriction; and myofasciitis.
On July 28, 2004 Dr. Turner stated that appellant’s cervical and shoulder range of motion
and pain levels had improved. Appellant had, however, experienced an exacerbation of the right
cervical and shoulder pain during the prior week, which she attributed to reaching for things
above shoulder level at work. Dr. Turner recommended that she be restricted from any repetitive
lifting and from working above shoulder level for three weeks.
In a September 29, 2004 report, Dr. Turner reported the history of injury, as related by
appellant, who stated that she was accidentally knocked down to the floor on June 7, 2004 while
performing her normal work duties by a gaylord box and landed on her right shoulder and back.
He opined that his findings on June 17, 2004 were consistent with this type of injury to the neck,
upper thoracic spine and right shoulder. Dr. Turner expanded his diagnoses to include cervical
subluxation, cervical sprain/strain, right shoulder restrictions/pain/bursitis, thoracic subluxation
and muscle spasms. He stated that x-ray findings demonstrated the presence of multiple
subluxations that were directly related to the injuries sustained on June 7, 2004.
On October 8, 2004 OWCP accepted appellant’s claim for subluxation of the cervical
spine. Appellant returned to work full time on May 5, 2006. On December 5, 2008 she filed a
notice of recurrence (Form CA-2a).
Appellant submitted a March 31, 2008 duty status report from Dr. Turner, who diagnosed
cervicobrachial syndrome. Dr. Turner stated that appellant was bumped on June 7, 2004 and
knocked to the floor, landing on her right shoulder. His findings included “injury to cervical

2

spine and right shoulder.” Dr. Turner indicated that repetitive movement, heavy lifting and
reaching above the head exacerbated the problem.3
In a December 8, 2008 narrative report, Dr. Turner provided examination findings, which
revealed restricted cervical range of motion. He diagnosed cervicobrachial syndrome and opined
that appellant had a chronic cervical and right shoulder dysfunction due to her on-the-job injury,
which had been exacerbated by new job requirements. Dr. Turner stated that her original on-thejob injury occurred when she was struck by a “gaylord” and knocked to the ground, landing on
her right shoulder. From that injury, appellant continued to experience pain in the neck that
radiates into the right shoulder and occasionally down the right arm to the hand. Dr. Turner
noted that on October 25, 2008 appellant was moved to a new work section and engaged in new
job duties, which included lifting and moving heavy flats. The performance of these new job
activities resulted in an exacerbation of the right shoulder pain, with a loss of strength in the right
arm and loss of grip in the right hand. Dr. Turner recommended restrictions, which included
lifting, pushing and pulling no more than 10 pounds, and no reaching above her shoulder level
with the right upper extremity. He noted that appellant stopped working on December 5, 2008
because her employer was unable to accommodate her restrictions.
Appellant submitted reports dated January 30 and February 6, 2009 from Dr. Terrence
Pratt, a Board-certified physiatrist. On February 6, 2009 Dr. Pratt provided a history of injury
reflecting that in 2004, appellant was knocked down by a coworker and fell on her right side,
“resulting in disability with a disabling condition, more probable than not caused by her
employment.” Appellant reportedly experienced severe cervical discomfort, with symptoms
radiating to the upper back and right shoulder, and weakness of the right hand and shoulder. Her
symptoms were increased by overhead lifting and excessive activities while working. On
examination, appellant had limited cervical range of motion and findings of impingement at the
shoulder level. Dr. Pratt diagnosed cervicothoracic syndrome with right greater than left
shoulder syndrome with impingement and restricted appellant from lifting more than 20 pounds,
pushing or pulling more than 50 pounds and no repetitive overhead activities.
By decision dated May 4, 2009, OWCP denied appellant’s recurrence claim on the
grounds that the evidence was insufficient to establish that the claimed disability was due to the
accepted June 7, 2004 injury.
On May 19, 2009 appellant requested an oral hearing, which was conducted on
September 15, 2009. At the hearing, appellant testified that she was transferred in October 2008
to a flat sorter area, where she was forced to work outside of her restrictions. She was informed
by the employing establishment in November 2008 that there was no work available within her
restrictions.
In a September 3, 2009 report, Dr. Turner stated that appellant’s neck and shoulder pain
continued to be exacerbated by her work activities. He noted that on “June 16, 2004” appellant
had told him that her major symptom was neck pain spread that across the top of both shoulders
and into the right deltoid muscle, with an occasional sharp pain in the shoulder with neck or arm
3

The record contains periodic duty status reports from Dr. Turner which provided work restrictions related to her
diagnosed cervicobrachial syndrome.

3

movement. Muscle strength testing demonstrated a weakness in the shoulder abduction, which
indicated nerve impingement.
By decision dated December 1, 2009, an OWCP hearing representative affirmed the
May 4, 2009 decision denying appellant’s recurrence claim.4
On November 18, 2009 appellant requested a schedule award. OWCP referred her to
Dr. George Varghese, a Board-certified physiatrist, for an opinion as to whether appellant had
any permanent impairment related to her accepted cervical subluxation. In a February 23, 2010
report, Dr. Varshese stated that appellant had significant cervical and right upper extremity pain,
there was no evidence of cervical radiculopathy. He opined that she had no permanent
impairment for cervical pain according to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). By decision dated March 5, 2010,
OWCP denied appellant’s schedule award request.
In a June 2, 2010 report, Dr. Turner stated that appellant continued to experience neck
and shoulder pain resulting from her June 7, 2004 injury. He opined that her condition was
chronic and not improving. For that reason, he discharged her from his care. Dr. Turner noted
that appellant had recently changed jobs and that although she was no longer required to lift
heavy objects, her new job involved “a lot of repetitive movements that can be stressing the neck
and shoulder.”
On July 15, 2010 appellant appealed OWCP’s December 1, 2009 decision to the Board.
Upon the request of appellant’s representative, the Board dismissed the appeal.5
In an undated letter, received on September 13, 2010, appellant requested that her claim
be expanded to include a right shoulder condition. She argued that her shoulder condition had
previously not been accepted because she had been treated by a chiropractor, who was
apparently not qualified to diagnose her shoulder condition, but that it did, in fact, occur as a
result of the June 7, 2004 injury.
Appellant began treatment with Dr. Lisa Hermes, a Board-certified physiatrist. On
July 28, 2010 Dr. Hermes related the history of injury as reported by appellant. Appellant stated
that her pain began as a result of a June 7, 2004 injury when she was struck by another employee
who was operating a vehicle that was transporting boxes and fell onto her right shoulder,
sustaining trauma to her right shoulder and neck. On examination, right shoulder abduction had
significant giveaway to her strength when tested. Appellant was able to move her arm against
gravity in all planes without difficulty. Assessment of her passive range of motion revealed
near-normal forward flexion, deficits to shoulder abduction and internal and external rotation.
Sensation was grossly intact to light touch in all dermatomal distributions of her upper
extremities. Deep tendon reflexes were 2/4 in bilateral biceps, brachioradialis, and triceps.
Spurling’s test was positive for radicular symptoms down her right arm when her neck was
4

In a March 5, 2010 decision, OWCP denied appellant’s request for a schedule award. By decision dated
September 24, 2010, an OWCP hearing representative affirmed the March 5, 2010 decision.
5

Docket No. 10-569 (issued November 10, 2010).

4

extended to the right. There was no evidence of clonus and she had a negative Hoffman’s sign
bilaterally. Appellant had limited cervical spine flexion, extension, side bending and rotation.
She had numerous tender points throughout her upper trapezius and levator scapula on the right
and had positive Hawkins test for shoulder impingement. Dr. Hermes diagnosed chronic neck
pain with underling disc degeneration, stenosis, and secondary myofascial pain and right
shoulder pain concerning for underlying RTC or joint pathology. She recommended MRI scan
of the cervical spine and right shoulder due to her complex presentation.
In a July 20, 2010 report, Dr. Pratt stated that he first examined appellant on January 30,
2009 when she informed him that she injured her neck and right shoulder when she was knocked
down by a coworker in 2004. He opined that appellant had a right shoulder syndrome in direct
relationship to vocationally-related activities, as well as cervicothoracic syndrome. Dr. Pratt
stated that she had reached maximal medical improvement and had a 16 percent permanent
disability of her shoulder.
By letter dated September 17, 2010, OWCP informed appellant that the evidence of
record was insufficient to establish that her shoulder condition was causally related to the
accepted injury. It advised her to submit a medical report with a diagnosis and a rationalized
medical opinion as to the cause of the claimed shoulder condition.
In a September 20, 2010 letter, appellant stated that her right shoulder had been a
constant problem since the June 7, 2004 accepted injury. She insisted that her shoulder condition
was a result of the original injury, rather than a new injury.
On September 14, 2010 Dr. Hermes repeated the history of appellant’s injury and
provided examination findings. She diagnosed right shoulder pain with concern for underlying
joint pathology; right posterior shoulder girdle myofascial pain; and chronic neck pain with
underlying cervical spondylosis.
By decision dated October 22, 2010, OWCP denied appellant’s request to expand her
claim to include a right shoulder condition, finding that the medical evidence did not provide a
firm diagnosis of a right shoulder condition or a rationalized medical opinion explaining the
causal relationship between the shoulder condition and the June 7, 2004 injury.
On December 1, 2010 appellant requested that OWCP reconsider the decision denying
expansion of her claim. She contended that the evidence submitted was sufficient to establish
that her shoulder condition was caused by the June 7, 2004 injury. Appellant submitted copies of
authorization request forms and medical reports which had been previously submitted and
reviewed by OWCP.
In a December 22, 2010 report, Dr. Joshua D. Nelson, an orthopedic surgeon, stated that
appellant was being seen for a follow-up visit for right shoulder pain, noting that she had
received both a subacromial and glenohumeral injection, which had improved her range of
motion rapidly. Examination of the right shoulder revealed some tenderness over the AC joint,
as well as over the bicipital groove. External and internal rotation, forward flexion and
abduction were 90, 70, 130 and 110 degrees, respectively. Dr. Nelson indicated that appellant

5

would be undergoing right shoulder arthroscopy and rotator cuff repair, subacromial
decompression, distal clavicle resection and likely biceps tenotomy.
By decision dated March 7, 2011, OWCP denied modification of its October 22, 2010
decision. The claims examiner found that the evidence did not establish that appellant sustained
a right shoulder injury as a result of the accepted June 7, 2004 injury.
On June 5, 2011 appellant, through her representative, requested reconsideration based on
additional evidence, including a November 18, 2010 MRI scan report, notes dated September 14,
2010 through January 6, 2011 and a December 1, 2010 report from the University of Kansas
Medical Center, a January 6, 2011 operative report, a January 19, 2011 follow-up report and an
April 27, 2011 report prepared by appellant’s operating physician. Counsel noted that the reports
submitted “inferred that appellant’s shoulder injury was work related.”
Appellant submitted hospital records and reports relating to a January 6, 2011 right
shoulder arthroscopy and rotator cuff repair performed by Dr. Nelson, a September 15, 2010
physical therapy referral from Dr. Hermes, a September 14, 2010 return-to-work slip from
Dr. Hermes and a November 18, 2010 report of a right shoulder MRI scan.
In a December 1, 2010 report, Dr. Nelson stated that appellant fell on her right shoulder
when she was pushed down by a fellow worker on June 7, 2004 and had experienced continuous
pain in this right shoulder since that time. Examination of the right shoulder revealed external
rotation to 45 degrees and internal rotation to 40 degrees without significant pain. Appellant had
bicipital tenderness with deep palpation and pain with forward flexion beyond 90 degrees.
Reports of MRI scans and x-rays showed some degenerative change to the posterior glenoid.
There was some concern for intra-substance tendinosis of the rotator cuff and a posterior labral
tear with a spinal glenoid cyst. Dr. Nelson diagnosed right shoulder pain, likely due to
arthrofibrosis/adhesive capsulitis and posterior labral tear with rotator cuff tendinosis.
In an April 27, 2011 report, Dr. Nelson opined that appellant’s June 7, 2004 injury would
be causally related to her current condition “if [the fall] resulted in posterior subluxation of the
humeral head and posterior labral tear.” He stated:
“[Appellant’s] injury is a posterior and superior labral tear, AC arthritis, and
subacromial impingement as well as biceps pathology. Repetitive work with arms
coming in forward flexion would aggravate the outlet impingement, bursitis, and
biceps pathology that she has developed. Posterior labral tear is likely due to
some forced load humeral head posteriorly. AC joint arthritis is due to repetitive
overhead activity and activity across the body and lifting a significant amount of
weight.”
In reports dated July 30, 2010 and June 16, 2011, Dr. Sequita L. Richardson, a Boardcertified family practitioner, treated appellant for high blood pressure and stated that she suffered
from chronic neck and shoulder pain. She stated that appellant injured her shoulder at work in
June 2004. On examination, range of motion of the right shoulder was grossly intact and there
was some tenderness in the trapezius area.

6

The record contains reports of diagnostic testing, including a March 8, 2011 arthrogram;
a November 18, 2010 MRI scan and physical therapy notes. Appellant also submitted follow-up
reports from Dr. Nelson dated December 22, 2010, March 2 and May 11, 2011.
In a November 24, 2010 report, Dr. Hermes diagnosed chronic right shoulder pain with
remote history of trauma and MRI scan findings concerning for labral tear with significant
underlying degenerative joint disease and subdeltoid bursitis, right shoulder girdle myofascial
pain secondary and cervical spondylosis with transient radiculitis. Dr. Hermes related the results
of a right shoulder MRI scan, which revealed a possible labral tear as well as degenerative
changes of the humeral head, a significant amount of subdeltoid bursitis and arthritic changes to
her right AC joint. She expressed concern that most of appellant’s arm pain was related to a
shoulder joint pathology. Examination of the right shoulder revealed diffuse tenderness along
the left cervical paraspinals down to the levator scapulae, trapezius muscles, deltoids, rhomboids,
and through the latissimus and teres minor. Positive impingement sign with limits in shoulder
abduction to just 90 degrees and significantly limited right internal rotation even more so than
external rotation.
By decision dated September 6, 2011, OWCP denied modification of its March 7, 2011
decision, finding that the medical evidence was insufficient to establish that the accepted June 7,
2004 incident caused her claimed right shoulder condition.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.6 To establish a causal relationship between the condition
claimed, as well as any attendant disability, and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.7 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.8
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by rationalized medical evidence explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9 Neither the fact that a disease or condition manifests itself during a

6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

Jennifer Atkerson, 55 ECAB 317 (2004).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000).

7

period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not established that she has a right shoulder condition
causally related to her accepted injury. OWCP accepted the claim for subluxation of the cervical
spine. Appellant contends that it should accept her right shoulder condition. A review of the
medical evidence does not reveal a reasoned medical opinion establishing a causal relationship
between appellant’s right shoulder condition and the accepted injury.
The record reflects appellant’s treatment by her chiropractor, Dr. Turner, for the accepted
cervical subluxation and a right shoulder injury, which he opined was a direct result of the
June 7, 2004 fall. Chiropractors are considered to be physicians under FECA 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. The Board finds that Dr. Turner
qualifies as a physician under FECA only as to treatment of appellant’s cervical subluxation. His
opinion on the cause of appellant’s shoulder condition does not constitute probative medical
evidence.11 Dr. Turner’s statement that work activities, including repetitive movement, heavy
lifting and reaching above the head, exacerbated appellant’s shoulder condition, suggest that
appellant experienced an occupational disease rather than traumatic injury.
On February 6, 2009 Dr. Pratt stated that on June 7, 2004 appellant was knocked down
by a coworker and fell on her right side, “resulting in disability with a disabling condition, more
probable than not caused by her employment.” He provided examination findings and diagnosed
cervicothoracic syndrome with right greater than left shoulder syndrome with impingement.
Dr. Pratt’s report is speculative and unsupported by rationalized medical evidence explaining the
nature of the relationship between appellant’s cervical condition and the accepted injury.12 On
July 20, 2010 Dr. Pratt opined that appellant had a right shoulder syndrome in direct relationship
to vocationally-related activities, as well as cervicothoracic syndrome. Dr. Pratt did not
sufficiently describe appellant’s job duties or explain the medical process through which such
duties would have been competent to cause the claimed shoulder condition. Medical conclusions
unsupported by rationale are of little probative value.13 Dr. Pratt did not provide findings on
examination, or indicate that his opinion was based on a review of a complete factual and
medical background. For these reasons, his report is of diminished probative value.

10

Ernest St. Pierre, 51 ECAB 623 (2000).

11

Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 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.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
12

Leslie C. Moore, supra note 9.

13

Willa M. Frazier, 55 ECAB 379 (2004).

8

On July 28, 2010 Dr. Hermes stated that appellant’s pain began as a result of the June 7,
2004 injury when she sustained trauma to her right shoulder and neck. She provided detailed
examination findings and diagnosed chronic neck pain with underling disc degeneration, stenosis
and secondary myofascial pain and right shoulder pain concerning for underlying RTC or joint
pathology. On November 24, 2010 Dr. Hermes diagnosed chronic right shoulder pain with
remote history of trauma and MRI scan findings concerning for labral tear with significant
underlying degenerative joint disease and subdeltoid bursitis, right shoulder girdle myofascial
pain secondary and cervical spondylosis with transient radiculitis. She related the results of a
right shoulder MRI scan, which revealed a possible labral tear as well as degenerative changes of
the humeral head, a significant amount of subdeltoid bursitis and arthritic changes to her right
AC joint. Dr. Hermes did not explain, however, how the accepted June 7, 2004 incident could
have been responsible for the myriad of diagnoses provided. Such an explanation is particularly
important given the six-year lapse in time between the accepted injury and the dates of her
reports. Absent a rationalized opinion on causal relationship, her reports are insufficient to
establish appellant’s claim.
On December 1, 2010 Dr. Nelson stated that appellant had experienced continuous pain
in her right shoulder since falling on it at work on June 7, 2004. He provided examination
findings and diagnosed right shoulder pain, likely due to arthrofibrosis/adhesive capsulitis and
posterior labral tear with rotator cuff tendinosis. In an April 27, 2011 report, Dr. Nelson opined
that appellant’s June 7, 2004 injury would be causally related to her current condition “if [the
fall] resulted in posterior subluxation of the humeral head and posterior labral tear.” He went on
to explain that her labral tear was likely due to some forced load humeral head posteriorly; AC
joint arthritis was due to repetitive overhead activity and activity across the body and lifting a
significant amount of weight; and repetitive work with arms coming in forward flexion would
aggravate the outlet impingement, bursitis, and biceps pathology. Dr. Nelson’s reports are
speculative and unsupported by rationalized medical evidence explaining the nature of the
relationship between appellant’s shoulder condition and the accepted injury.14 The mere fact that
a condition manifests itself during a period of employment is insufficient to establish causal
relationship.15 Therefore, Dr. Nelsons reports are of limited probative value, and do not support
appellant’s claim to expand the scope of accepted conditions.16
Reports of MRI scans and x-rays, which do not contain an opinion as to the cause of
appellant’s condition, are of diminished probative value and are insufficient to establish
appellant’s claim.17
The Board finds that appellant has failed to meet her burden of proof to establish that the
left shoulder conditions claimed are causally related to the accepted employment injury.18 The
14

Leslie C. Moore, supra note 9.

15

Id.

16

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

17

Id.

18

Jaja K. Asaramo, supra note 6.

9

fact that a condition is mentioned in a medical report along with other accepted conditions does
not infer that it is related to the work injury. An award of compensation may not be based on
surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between her claimed condition and her employment.19 Accordingly, OWCP
properly denied expansion of appellant’s claim.
On appeal, counsel argues that the evidence establishes that appellant’s shoulder
condition was caused by the June 7, 2004 injury. For reasons stated, the Board finds that the
evidence is insufficient to establish appellant’s claim for a left shoulder condition. Counsel also
contends the fact that OWCP paid medical bills related to the shoulder condition for over six
years supports appellant’s claim for expansion. The Board has held, however, that OWCP’s
gratuitous payment of a medical bill, without more, does not constitute formal acceptance of a
claim for injury.20
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 that her claim should be expanded to
include a cervical condition due to the accepted employment injury.

19

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

20

See M.C., Docket No. 12-64 (issued May 10, 2012); Gary L. Whitmore, 43 ECAB 441 (1993) (where the Board
found that payment of compensation by OWCP does not in and of itself, constitute acceptance of a particular
condition or disability in absence of evidence from OWCP indicating that a particular condition or disability has
been accepted as work related).

10

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 23, 2012
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Brooklyn, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0267
Issued: July 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 16, 2018 appellant, through counsel, filed a timely appeal from an
October 19, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1

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

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

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition causally related to the accepted October 15, 2015 employment incident.
FACTUAL HISTORY
On October 20, 2015 appellant, then a 45-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 15, 2015 he injured his left arm when pulling
a door open while in the performance of duty. He explained that he felt a pop in the biceps of his
left arm.
On October 15, 2015 the employing establishment provided appellant with an
authorization for examination and/or treatment (Form CA-16).
In a note dated October 19, 2015, Dr. Franklin Chen, a Board-certified orthopedic surgeon,
diagnosed tear/rupture of the rotator cuff.
By development letter dated October 27, 2015, OWCP advised appellant of the
deficiencies of his claim. It requested additional factual and medical evidence. OWCP afforded
appellant 30 days to respond.
In an October 15, 2015 emergency room notes, Dr. Aruna Chhabria, a Board-certified
family practitioner, examined appellant and noted that he opened a heavy steel door at work and
felt a “pop.” Appellant’s left arm was painful with limited movement. Dr. Chhabria diagnosed
muscle strain.
On October 19, 2015 Dr. Chen noted appellant’s history of injury as opening a door to
enter a prison unit and experiencing immediate pain in his left arm. He again diagnosed
tear/rupture of the left rotator cuff. Dr. Chen opined that it was within medical probability that
appellant’s current condition was causally related to his work injury. He again examined appellant
on October 26, 2015 and reviewed appellant’s October 21, 2015 magnetic resonance imaging
(MRI) scan. Dr. Chen diagnosed superior and anterior labral tears, partial tear of the inferior
glenohumeral ligament, and supraspinatus tendinosis. He again opined that appellant’s left
shoulder condition was “probably causally” related to his work injury.
By decision dated December 2, 2015, OWCP denied appellant’s claim finding that the
medical evidence did not establish that his diagnosed condition was causally related to his accepted
October 15, 2015 employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.

3

5 U.S.C. § 8101 et seq.

2

On December 29, 2015 appellant requested reconsideration of the December 2, 2015
OWCP decision. He provided a narrative statement and asserted that his work in the employing
establishment required him to open steel doors weighing approximately 300 pounds. Appellant
noted that he opened these doors more than 50 times a day. On October 15, 2015 he pulled open
a steel door and felt a pop and instant pain in his shoulder.
In support of his December 29, 2015 request for reconsideration, appellant also submitted
additional medical evidence. On November 9, 2015 Dr. Chen examined appellant and diagnosed
instability, subluxation of the left shoulder joint with internal derangement. He opined that based
on appellant’s history and examination it was within medical probability that appellant’s current
left shoulder condition was causally related to his work injury. Dr. Chen found that it was
medically probable that appellant either sustained a traumatic labral tear from pulling the heavy
door suddenly, when he felt a pop in his shoulder, or sustained an exacerbation of preexisting labral
tears. He noted that appellant initially reported pulling a heavy door and feeling a pop, which was
consistent with a labral tear injury. On December 1 and 22, 2015 Dr. Chen repeated his findings
and conclusions.
In a narrative report dated December 22, 2015, Dr. Chen noted that appellant attributed his
left shoulder condition to a work injury sustained while opening a prison door. Appellant felt a
pop and then immediate left shoulder pain. Dr. Chen reviewed appellant’s MRI scan and opined
that appellant’s history of injury was consistent with a labral tear injury.
On January 5, 2016 Dr. Chen found that appellant’s left shoulder symptoms had worsened.
He diagnosed left shoulder instability and injury of the brachial plexus. Dr. Chen repeated his
opinion that it was within medical probability that appellant’s current conditions were causally
related to his work injury. He noted that it was medically probable that appellant either sustained
a traumatic labral tear from pulling the heavy door when he suddenly felt a pop in his shoulder or
that he sustained an exacerbation of preexisting labral tears.
By decision dated March 14, 2016, OWCP denied modification of its prior decision.
On April 27, 2016 appellant, through counsel requested reconsideration of the March 14,
2016 decision. In a narrative report dated April 21, 2016, Dr. Chen noted that appellant had no
previous shoulder problems prior to October 19, 2015. He reported appellant’s history of pulling
a heavy prison door and experiencing a sudden pop and pain in his left shoulder. Dr. Chen
reviewed appellant’s MRI scan and opined that given the weight of the door and the mechanism
of injury it was within medical probability that appellant’s current shoulder injuries were a direct
result of his October 15, 2015 work accident. He recommended surgery.
By decision dated July 26, 2016, OWCP denied modification of its prior decisions.
On September 9, 2016 appellant, through counsel requested reconsideration of the July 26,
2016 OWCP decision. He submitted a September 1, 2016 report from Dr. Chen, opining that, as
appellant was opening a door that weighed over 300 pounds when he felt a pop in his left arm, he
experienced superior and anterior labral tears as a result of pulling the door.
By decision dated October 19, 2018, OWCP denied modification of its prior decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation 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. 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing 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 medical evidence to
establish that the employment incident caused a personal injury.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.7 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted October 15, 2015 employment incident.
An October 15, 2015 emergency room record from Dr. Chhabria, provided a history of the
accepted employment incident and a diagnosis of muscle strain. However, Dr. Chhabria did not
offer an opinion regarding the causal relationship between the employment incident and
appellant’s diagnosed left shoulder condition. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on

4

Id.

5

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

6

A.D., id.; T.H., 59 ECAB 388 (2008).

7

T.H., Docket No. 18-1736 (issued March 13, 2019).

8

A.D., supra note 5; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

the issue of causal relationship.9 This report, therefore, is insufficient to establish appellant’s
claim.
Dr. Chen provided a series of notes dated from October 19, 2015 through April 21, 2016
describing appellant’s employment incident and diagnosing left rotator cuff tear. He opined that
it was within medical probability that appellant’s left shoulder condition was causally related to
his accepted October 15, 2015 work incident. These notes are of limited probative value as
Dr. Chen’s opinions are couched in speculative terms. Dr. Chen did not offer a clear opinion that
he believed that appellant’s diagnosed condition was causally related to his accepted employment
incident. The Board has previously held that generalized and speculative statements are
insufficient to establish causal relationship because they merely repeat appellant’s allegations and
are unsupported by adequate medical rationale explaining how the specific physical activity
actually caused the diagnosed conditions.10 As Dr. Chen did not explain how pushing open the
door would have physiologically caused, aggravated, or accelerated appellant’s left shoulder
conditions, his opinion is of limited probative value.11 As he did not explain, with medical
rationale, how the accepted employment incident caused the diagnosed conditions, his opinions
are of limited probative value.12
Dr. Chen completed a December 22, 2015 narrative and noted that appellant attributed his
left shoulder condition to a work injury sustained while opening a prison door. He reviewed
appellant’s MRI scan and opined that his history of injury was consistent with a labral tear injury.
Dr. Chen again did not offer medical reasoning explaining how the accepted employment incident
resulted in the diagnosed condition. Likewise, in his September 1, 2016 report, he noted that as
appellant was opening a door that weighed over 300 pounds he felt a pop in his left arm. Dr. Chen
opined that appellant experienced superior and anterior labral tears as a result of pulling the door.
These reports are of limited probative value as he did not explain how or why, physiologically,
appellant’s accepted employment incident caused or aggravated his diagnosed left shoulder
conditions.13
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.14 Temporal relationship alone will not suffice. Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.15 Herein, the record lacks rationalized medical evidence based on an accurate
factual background establishing causal relationship between the accepted October 15, 2015
9

K.E., Docket No. 18-1357 (issued March 26, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
10

R.V., Docket No. 18-1037 (issued March 26, 2019); K.W., Docket No. 10-0098 (issued September 10, 2010).

11

R.V., id.; D.M., Docket No. 18-1434 (issued February 22, 2019); John W. Montoya, 54 ECAB 306 (2003).

12

R.V., id.; I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

13

K.E., supra note 9; M.F., Docket No. 17-1973 (issued December 31, 2018).

14

M.H., Docket No. 18-1737 (issued March 13, 2019); Daniel O. Vasquez, 57 ECAB 559 (2006).

15

M.H., id.; D.D., 57 ECAB 734 (2006).

5

employment incident and appellant’s diagnosed left shoulder conditions.16 Thus, he has not met
his burden of proof.17
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 left shoulder
condition causally related to the accepted October 15, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
16

See M.H., id.; J.S., Docket No. 17-0507 (issued August 11, 2017).

17

The record contains a Form CA-16 signed by an employing establishment official. When the employing
establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, the Form CA-16 creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. C.W.,
Docket No. 17-1293 (issued February 12, 2018); Tracy P. Spillane, 54 ECAB 608 (2003). The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by
OWCP. See 20 C.F.R. § 10.300(c).

6