United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 18-1418
Issued: February 7, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from an April 3, 2018 nonmerit decision
and a June 8, 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a review of the
written record under 5 U.S.C. § 8124(b); (2) whether he has met his burden of proof to establish a
recurrence of a medical condition beginning December 6, 2012 causally related to his accepted
employment injury; and (3) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional lumbar conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as presented
in the prior Board decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On September 8, 2001 appellant, then a 46-year-old heavy mobile mechanic, filed a
traumatic injury claim (Form CA-1) alleging that, on August 6, 2001, he injured his left leg and
low back while in the performance of duty. OWCP accepted the claim for lumbar strain and,
assigned File No. xxxxxx248.3 Appellant’s attending physician found that he could perform his
regular work duties beginning April 29, 2002.4
By decision dated December 30, 2009, the Board affirmed nonmerit decisions of OWCP
dated June 19, August 20, and October 15, 2008 denying his request for a review of the written
record and a July 16, 2008 OWCP decision denying his request for reconsideration as untimely
and insufficient to show clear evidence of error.5
On November 16, 2012 OWCP referred appellant to Dr. Douglas P. Hein, a Boardcertified orthopedic surgeon, for a second opinion examination to determine whether he required
further medical treatment due to his August 6, 2001 employment injury.6
Dr. Hein, in a report dated December 5, 2012, found that appellant had no residuals from
his August 6, 2001 employment injury. He opined that appellant had preexisting degenerative
changes at L4-5 and L5-S1 and that his current L4-5 spondylolisthesis constituted a natural
progression of that condition.
By decision dated February 13, 2013, OWCP terminated appellant’s medical benefits and
entitlement to any future wage-loss compensation, effective that date. It determined that

2

Docket No. 16-1456 (issued January 10, 2017); Docket No. 15-1571 (issued November 5, 2015); Order
Dismissing Appeal, Docket No. 14-1301 (issued November 12, 2014); Docket No. 13-1953 (issued December 11,
2013); Docket No. 09-0321 (issued December 30, 2009); Order Dismissing Appeal, Docket No. 08-1575 (issued
September 29, 2008); Order Dismissing Appeal, Docket No. 07-1313 (issued April 28, 2008).
In a decision dated August 19, 2002, OWCP denied appellant’s claim for a schedule award. On September 3,
2002 appellant requested a review of the written record. On January 23, 2003 an OWCP hearing representative
affirmed the August 19, 2002 decision.
3

4
Appellant filed a notice of recurrence (Form CA-2a) claiming disability beginning July 2004 causally related to
his August 6, 2001 work injury. However, as he cited new work factors, OWCP adjudicated the claim as a new injury,
assigned File No. xxxxxx141.
5
Supra note 2. By decisions dated September 27, 2011, and June 11, July 26, and September 26, 2012, OWCP
denied appellant’s continued requests for reviews of the written record under section 8124(b) as it found that there
was no final decision from which he could receive a review of the written record.
6

On August 8, 2012 appellant requested reconsideration of an August 19, 2002 schedule award decision. By
decision dated September 21, 2012, OWCP denied his request for reconsideration as it was untimely and insufficient
to show clear evidence of error.

2

Dr. Hein’s opinion constituted the weight of the evidence and demonstrated that he had no further
residuals of his accepted employment injury.
Thereafter, OWCP received a January 16, 2013 report from Dr. Jeffrey A. Fried, an
attending Board-certified orthopedic surgeon. Dr. Fried opined that appellant had continued
residuals of his accepted condition low back strain and that the low back strain had caused
spondylolisthesis at L5-S1.
Appellant, on April 15, 2013, requested both a review of the written record and
reconsideration. By decision dated May 10, 2013, OWCP denied his request for a review of the
written record as it was not made within 30 days of its decision. By decision dated August 9, 2013,
it denied modification of its February 13, 2013 decision. OWCP determined that appellant had
not submitted any medical evidence sufficient to outweigh Dr. Hein’s opinion that he had no
residuals of his accepted lumbar strain.
On December 7, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging that he
required further medical treatment beginning December 6, 2012 causally related to his August 6,
2001 employment injury.7
Appellant appealed to the Board. By decision dated December 11, 2013, the Board
affirmed the May 10, 2013 decision denying his request for a review of the written record and the
August 9, 2013 decision terminating his medical benefits. The Board found that Dr. Hein’s
opinion constituted the weight of the evidence and demonstrated that appellant did not require
further medical treatment. The Board further found that Dr. Fried’s opinion in his January 16,
2013 report that appellant had continued residuals of his lumbar sprain was unsupported by
medical rationale.8
Dr. Fried, in a report dated March 19, 2015, opined that appellant had a “previous quiescent
back condition, which was aggravated by the accident and has not returned to its baseline state”
and that, consequently, his spondylolisthesis was employment related.
On May 22, 2015 appellant requested reconsideration. By decision dated June 25, 2015,
OWCP denied his request for reconsideration as it was untimely filed and did not demonstrate
clear evidence of error.
Appellant appealed to the Board. By decision dated November 5, 2015, the Board affirmed
the June 25, 2015 decision.9 The Board discussed appellant’s contention that OWCP should have
adjudicated the issue of whether he had sustained a recurrence of a medical condition. The Board
7

OWCP, in a March 21, 2014 response, advised appellant that it would not take action on his notice of recurrence
of a medical condition as it had previously terminated his compensation and medical benefits. Appellant appealed the
March 21, 2014 correspondence to the Board. On November 12, 2014 the Board dismissed the appeal after finding
that the March 21, 2014 letter was informational in nature rather than a final adverse decision. The Board thus found
that there was no final decision over which it had jurisdiction. Order Dismissing Appeal, Docket No. 13-1953 (issued
December 11, 2013).
8

Supra note 2.

9

Supra note 2.

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found, however, that the current issue was whether OWCP had properly terminated his entitlement
to medical benefits as he had no further residuals of his lumbar strain.
OWCP, on January 13, 2016, requested that appellant submit supporting factual and
medical evidence, including a report from his attending physician, addressing the relationship
between any current condition and his accepted work injury.
In a report dated January 27, 2016, Dr. Fried noted that on October 6, 2001 appellant had
sustained an injury to his back pulling a wheel off a trailer. He advised that a magnetic resonance
imaging (MRI) scan obtained after his injury showed spondylosis, but that his condition had
deteriorated as evidenced by a March 6, 2009 MRI scan showing grade one spondylolisthesis and
a bulging disc. Dr. Fried opined that appellant’s employment injury had aggravated his preexisting
spondylosis and caused spondylolisthesis at L4-5.
By decision dated June 24, 2016, OWCP found that appellant had not established an
employment-related recurrence of disability. It determined that Dr. Fried’s January 27, 2016
report failed to explain why his current condition was related to the August 6, 2001 employment
injury.
Appellant appealed to the Board. By decision dated January 10, 2017, the Board affirmed
OWCP’s June 24, 2016 decision.10 The Board found that appellant had not submitted reasoned
medical evidence sufficient to establish the need for further medical treatment due to his August 6,
2001 employment injury. The Board also determined that Dr. Fried’s reports were insufficient to
establish that he sustained spondylolisthesis due to his accepted employment injury.
Dr. Fried, in a May 26, 2017 report, discussed appellant’s history of lumbar sprain on
August 6, 2001 and his continued complaints of pain in the leg and back. He opined that an injury
could trigger asymptomatic spondylolisthesis. Dr. Fried related, “It is my opinion with reasonable
medical certainty that the lumbar strain sustained by [appellant] on August 6, 2001 resulted in an
aggravation of a previously quiescent spondylolisthesis and that aggravation has persisted today
and he is continuing to have back and leg pain.”
On June 26, 2017 appellant requested reconsideration.
By decision dated February 15, 2018, OWCP denied modification of its January 10, 2017
decision. It found that Dr. Fried had failed to explain how the August 6, 2001 employment injury
caused or aggravated spondylolisthesis.
Appellant, on February 26, 2018, requested a review of the written record by an OWCP
hearing representative. He contended that OWCP erred in failing to expand acceptance of his
claim to include chronic musculoskeletal low back pain and degenerative disc disease at L4-5 and
L5-S1. Appellant also requested that OWCP consolidate his claims.
By decision dated April 3, 2018, OWCP denied appellant’s request for a review of the
written record under section 8124(b) as it was made after he had requested and received
10

Supra note 2.

4

reconsideration of his claim under section 8128(a). It considered the matter within its discretion
and found that the issue could be equally well addressed through the submission of a
reconsideration request with evidence supporting that he sustained degenerative lumbar disc
disease due to his August 6, 2001 employment injury.
In an April 18, 2018 report, Dr. Fried asserted that appellant had not recovered from his
August 6, 2001 employment injury. He noted that he had reduced motion and back pain. Dr. Fried
related, “Although the degenerative disc disease and spondylolisthesis were probably a preexisting
condition, the incident resulted in a permanent aggravation of [appellant’s] injury as he has not
returned to baseline condition.”
On May 29, 2018 appellant requested reconsideration.
By decision dated June 8, 2018, OWCP denied modification of its February 15, 2018
decision. It found that Dr. Fried, in his April 18, 2018 report, did not provide rationale supporting
his causation finding.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of FECA, concerning a claimant’s entitlement to a hearing, states that:
“Before review under section 8128(a) of this title, a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.”11 Section
10.615 of OWCP’s regulations, implementing this section of FECA, provides that a claimant who
requests a hearing can choose between two formats, either an oral hearing or a review of the written
record by an OWCP hearing representative.12 As section 8124(b)(1) is unequivocal in setting forth
the time limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of
right unless the request is made within the requisite 30 days.13 The date of filing is fixed by
postmark or other carrier’s date marking.14
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings, and that it must exercise this discretionary authority in deciding whether
to grant a hearing.15 Specifically, the Board has held that OWCP has the discretion to grant or
deny a hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,16 when the request is made after the

11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. § 10.615.

13

T.A., Docket No. 18-0431 (issued November 7, 2018).

14

See 20 C.F.R. § 10.616(a).

15

C.K., Docket No. 18-0607 (issued October 18, 2018); Marilyn F. Wilson, 52 ECAB 347 (2001).

16

See C.A., Docket No. 17-0944 (issued May 15, 2018).

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30-day period for requesting a hearing,17 when the request is for a second hearing on the same
issue,18 and when the request is made after a reconsideration request was previously submitted.19
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for a review of the written
record under 5 U.S.C. § 8124(b).
Appellant’s February 26, 2018 request for a review of the written record by an OWCP
hearing representative of OWCP’s February 15, 2018 decision was made after he had previously
requested reconsideration under section 8128(a). By decision dated June 24, 2016, OWCP found
that appellant had not established an employment-related recurrence. The Board, by decision dated
January 10, 2017, affirmed OWCP’s June 24, 2016 decision. Appellant requested reconsideration
on June 26, 2017. By decision dated February 15, 2018, OWCP denied modification of its prior
merit decision. Consequently, appellant was not entitled to a hearing as a matter of right as he had
previously requested reconsideration.20
OWCP also has the discretionary power to grant a hearing when a claimant is not entitled
to a hearing as a matter of right.21 In its April 3, 2018 decision, it properly exercised its discretion
by considering appellant’s request and finding that the issue could be equally well addressed
through the submission of a reconsideration request with evidence supporting that he had a current
lumbar condition causally related to his accepted employment injury. The Board has held that as
the only limitation on OWCP’s authority is reasonableness, abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which
are contrary to both logic and probable deduction from established facts.22 In the present case, the
evidence of record does not indicate that OWCP committed any act in connection with its denial
of appellant’s request for a hearing which could be found to be an abuse of discretion.23
LEGAL PRECEDENT -- ISSUE 2
The United States shall furnish to an employee who is injured while in the performance of
duty the services, appliances, and supplies prescribed or recommended by a qualified physician

17

D.R., Docket No. 18-0232 (issued October 2, 2018).

18

M.W., Docket No. 16-1560 (issued May 8, 2017).

T.A., Docket No. 18-0431 (issued November 7, 2018). Section 10.616(a) of OWCP’s regulations provides that
the claimant seeking a hearing must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision. 20 C.F.R. § 10.616(a).
19

20

See id.

21

See R.K., Docket No. 17-0151 (issued December 12, 2018).

22

See A.N., Docket No. 18-0843 (issued December 11, 2018).

23

C.A., Docket No. 17-0944 (issued May 15, 2018).

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that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability, or aid in lessening the amount of any monthly compensation.24
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.25 An employee has the burden of proof to establish that he or she
sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.26 To meet this burden the employee must submit
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, supports that the condition is causally related and supports his or her conclusion
with sound medical rationale.27 Where no such rationale is present, the medical evidence is of
diminished probative value.28
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a recurrence of
a medical condition on or after December 6, 2012 causally related to his August 6, 2001
employment injury.
In decisions dated February 13 and August 9, 2013, OWCP terminated his medical benefits
and entitlement to wage-loss compensation, effective February 13, 2013. The Board, by decision
dated December 11, 2013, affirmed the August 9, 2013 decision.
Appellant subsequently maintained that he required additional medical treatment due to his
accepted employment injury. The Board notes that it has previously reviewed the medical
evidence submitted to OWCP prior to its June 24, 2016 decision. By decision dated January 10,
2017, the Board affirmed the June 24, 2016 decision, finding that the medical evidence was
insufficient to establish that appellant required further medical treatment as a result of his accepted
employment injury. Absent further merit review by OWCP pursuant to section 8128 of FECA,
the Board’s prior findings with regard to the earlier medical evidence are res judicata.29 The
Board, therefore, will not review the evidence addressed in the prior appeal.30
In a May 26, 2017 report, Dr. Fried reviewed appellant’s history of lumbar sprain on
August 6, 2001 and his current symptoms of back and leg pain. He opined that the August 6, 2001
work injury caused an aggravation of preexisting, asymptomatic spondylolisthesis and that the
24

5 U.S.C. § 8103(a).

25

20 C.F.R. § 10.5(y).

26

E.R., Docket No. 18-0202 (issued June 5, 2018).

27

See T.B., Docket No. 18-0762 (issued November 2, 2018).

28

Id.

29

See M.S., Docket No. 18-0877 (issued November 21, 2018).

30

Id.

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aggravation had not resolved. On April 18, 2018 Dr. Fried determined that appellant had residuals
of his August 6, 2001 work injury. He found that the employment injury caused a permanent
aggravation of what was likely preexisting spondylolisthesis and degenerative disc disease. As
Dr. Fried failed to find that appellant had any need for further medical treatment due to his accepted
lumbar strain, his opinion is of little probative value on the issue of whether he experienced a
recurrence of the need for medical treatment due to his August 6, 2001 employment injury.31
Appellant has not submitted reasoned medical evidence establishing that he sustained a
recurrence of a medical condition due to his accepted employment injury, and thus has not met his
burden of proof.32
LEGAL PRECEDENT -- ISSUE 3
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 he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.33
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.34 Causal relationship is a medical issue, and the medical
evidence required to establish causal relationship is rationalized medical evidence.35 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 employee.36 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.37

31

See E.R., Docket No. 18-0202 (issued June 5, 2018).

32

A.C., Docket No. 17-0521 (issued April 24, 2018).

33

See C.W., Docket No. 17-1636 (issued April 25, 2018).

34

See D.A., Docket No. 18-0525 (issued November 2, 2018); T.F., Docket No. 17-0645 (issued August 15, 2018).

35

L.G., Docket No. 18-0321 (issued October 25, 2018).

36

E.G., Docket No. 17-1955 (issued September 10, 2018).

37

L.B., Docket No. 18-0560 (issued August 20, 2018).

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ANALYSIS -- ISSUE 3
The Board finds that appellant has not met his burden of proof to expand acceptance of his
claim to include additional lumbar conditions.
As noted, the Board has previously reviewed the evidence from Dr. Fried submitted prior
to its January 10, 2017 decision and found that his reports were insufficient to establish that
appellant sustained spondylolisthesis causally related to his August 6, 2001 employment injury.
Again, absent further merit review by OWCP, the Board prior’s findings are res judicata.38
Dr. Fried, on May 26, 2017, discussed appellant’s history of lumbar sprain on August 6,
2001 and indicated that such an injury could trigger asymptomatic spondylolisthesis. He found
that the August 6, 2001 lumbar strain aggravated preexisting asymptomatic spondylolisthesis.
OWCP, however, has not accepted an aggravation of spondylolisthesis as related to the August 6,
2001 employment injury. Appellant has the burden of proof to establish that the condition is
causally related to the employment injury through the submission of rationalized medical
evidence.39 Dr. Fried has not provided any rationale for his opinion that the employment injury
aggravated the preexisting spondylolisthesis other than to generally note that an injury could
trigger asymptomatic spondylolisthesis. Medical conclusions unsupported by rationale, or which
are speculative or equivocal in character, are of little probative value.40 Such rationale is
particularly warranted when there is a history of a preexisting condition.41
Dr. Fried, in a report dated April 18, 2018, opined that appellant had residuals of his
August 6, 2001 work injury causing a loss of motion and back pain. He found that he likely had
preexisting spondylolisthesis and degenerative disc disease, but that the employment injury had
permanently aggravated these conditions. Dr. Fried did not, however, explain the mechanics of
how the August 6, 2001 work injury caused a permanent aggravation of spondylolisthesis and
degenerative disc disease, or address why appellant’s current symptoms resulted from an
employment-related aggravation rather than the normal progression of the preexisting
conditions.42 The Board thus finds that appellant has not submitted sufficient rationalized medical
evidence supporting that the acceptance of his claim should be expanded to include additional
lumbar conditions causally related to his August 6, 2001 employment injury.43

38

Supra note 29.

39

See J.M., Docket No. 18-1223 (issued December 11, 2018).

40

See T.F., Docket No. 17-0645 (issued August 15, 2018).

41

See C.B., Docket No. 18-0633 (issued November 16, 2018).

42

Id.

43

See T.T., Docket No. 17-0681 (issued March 13, 2018).

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On appeal appellant contends that OWCP erred in failing to expand acceptance of his
claim. As discussed, however, the medical evidence is insufficient to establish any additional
conditions causally related to the August 6, 2001 employment injury.44
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 OWCP properly denied appellant’s request for a review of the written
record under 5 U.S.C. § 8124(b). The Board further finds that he has not met his burden of proof
to establish a recurrence of a medical condition beginning December 6, 2012 causally related to
his accepted employment injury, or that the acceptance of his claim should be expanded to include
additional lumbar conditions.
ORDER
IT IS HEREBY ORDERED THAT the June 8 and April 3, 2018 merit decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 7, 2019
Washington, DC

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

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

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

44

See M.S., Docket No. 17-0105 (issued December 7, 2017).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, HUMAN RESOURCE
ACTIVITY, Fort Belvoir, VA, Employer
__________________________________________

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

Docket No. 11-352
Issued: September 20, 2011

Case Submitted on the Record

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

JURISDICTION
On November 30, 2010 appellant filed a timely appeal from an August 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
disability compensation and November 2, 2010 decision denying her request for a review of the
written record. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
disabled from April 19 to 30, 2010 as a result of her accepted left wrist and emotional conditions;
and (2) whether OWCP properly denied appellant’s request for a review of the written record
under 5 U.S.C. § 8124(b) as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 22, 2009 appellant, then a 52-year-old human resource specialist, filed a
traumatic injury claim alleging that on July 20, 2009 she sustained a wrist injury, stress, and
trauma due to an employee grabbing and pulling her wrist to prevent her from leaving a room. A
witness stated that appellant’s wrist was swollen and bruised. Appellant stopped work on
July 20, 2009. OWCP accepted appellant’s claim for left wrist sprain and adjustment disorder
with mixed disturbance of emotions.
Appellant received disability compensation for the periods September 4, 2009 to
April 16, 2010 and May 31 to November 20, 2010. On October 24, 2010 appellant was placed
on the periodic rolls.
On June 2, 2010 OWCP received appellant’s claim for disability compensation for the
period April 19 to 30, 2010 along with various medical records. A leave analysis sheet for the
claimed period revealed that appellant used one hour of leave without pay (LWOP) on April 19,
three hours of LWOP on April 27, 2010 three and a half hours of LWOP on April 26, 2010 four
hours of LWOP on April 21 and 22, 2010 five hours of LWOP on April 20, 2010 and eight hours
of LWOP on April 28, 29 and 30, 2010. In an April 22, 2010 work excuse slip, Dr. Sulaiha
Mastan, a clinical psychologist, confirmed that appellant received medical treatment on that date.
On June 17, 2010 OWCP informed appellant that it received her claim for compensation
and requested that she provide additional medical evidence supporting that she was disabled as a
result of the July 20, 2009 employment injury. Appellant did not respond.
By decision dated August 16, 2010, OWCP denied appellant’s claim of disability for the
period April 19 to 30, 2010 finding insufficient medical evidence.
On October 15, 2010 appellant requested a review of the written record and submitted
additional medical evidence.2
In a decision dated November 2, 2010, an OWCP hearing representative denied
appellant’s request for review of the written record on the grounds that it was untimely filed. It
was determined that her claim could equally be addressed by requesting reconsideration and
submitting evidence not previously considered.

2

In an August 19, 2010 work excuse slip, Dr. Sofia R. Rizwan, a Board-certified psychiatrist and neurologist,
excused appellant for any absences during the period April 19 to 30, 2010 due to ongoing work-related stress caused
by a July 20, 2009 employment injury. In a September 8, 2010 report, Dr. Rizwan noted that she had been treating
appellant for emotional stress related to the July 20, 2009 employment incident and diagnosed adjustment disorder.
She also submitted a work excuse slip stating that appellant was under her care for emotional stress related to a
July 20, 2009 employment injury. Dr. Rizwan stated that appellant continued to demonstrate fear at work and felt
unsafe at work, cried, and got emotional, especially when in close proximity to the people who caused the injury.
Appellant also resubmitted the July 22, 2009 radiology report.

2

LEGAL PRECEDENT -- ISSUE 1
The term disability as used in FECA means the incapacity because of an employment
injury to earn wages that the employee was receiving at the time of injury.3 Disability is thus,
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.4 For each period of disability claimed, the employee has the burden of establishing that
he or she was disabled for work as a result of the accepted employment injury.5 Whether a
particular injury causes an employee to be disabled for employment is a medical issue which
must be proved by a preponderance of the reliable, probative and substantial medical evidence.6
Findings on examination are generally needed to support a physician’s opinion that an employee
is disabled for work.7 The Board will not require OWCP to pay compensation for disability in
the absence of any medical evidence addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.8
The Board has held that according to section 8103, payment of expenses incidental to the
securing of medical services encompasses payment for loss of wages incurred while obtaining
medical services.9 An employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury.10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s traumatic injury claim for a left wrist and emotional
condition and awarded disability compensation for the periods September 4, 2009 to April 16,
2010 and May 31 to November 20, 2010. Appellant also requested disability compensation for
the period April 19 to 30, 2010 and submitted medical evidence to support her claim.
The Board finds that the evidence establishes that appellant received medical treatment
for her work-related injury on April 22, 2010 and is entitled to a total of four hours of
compensation for this date.11 The record supports that appellant received treatment for her
accepted emotional condition on April 22, 2010 by Dr. Mastan, an attending clinical
3

20 C.F.R. § 10.5(f); Paul E. Thams, 56 ECAB 503 (2005).

4

See Fred Foster, 1 ECAB 21 (1947).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

6

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

7

See S.F., 59 ECAB 525 (2008); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); see William A. Archer, 55 ECAB 674 (2004).

9

5 U.S.C. § 8103.

10

Daniel Hollars, 51 ECAB 355 (2000); Antonio Mestres, 48 ECAB 139 (1996); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16(a) (December 1995).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998) (provides that, in general, no more than four hours of compensation or continuation of pay should
be allowed for routine medical appointments).

3

psychologist.12 This is the only medical evidence addressing her claim of disability from
April 19 to 30, 2010. Dr. Mastan, however, did not provide any opinion finding appellant
disabled on other dates during the claimed period or any medical rationale explaining why
appellant was unable to perform her employment duties. This evidence is insufficient to
establish that appellant was otherwise disabled during the claimed period as a result of her
accepted July 20, 2009 employment injuries.13
On appeal, appellant states that she overlooked her claim for compensation during this
period and pointed out that she had timely submitted all medical documentation requested by
OWCP. The Board notes that appellant submitted additional evidence following the August 16,
2010 merit decision. The Board, however, may not consider new evidence for the first time on
appeal which was not before OWCP at the time it issued its final decision. 20 C.F.R. § 501.2(c).
As the medical reports were not part of the record considered by OWCP in its August 16, 2010
decision, the Board may not consider this evidence for the first time on appeal.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation who is not
satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision and before review under section 8128(a), to a hearing on his
claim before a representative of the Secretary.14
OWCP regulations further provide that a claimant can choose between two types of
hearings: an oral hearing or a review of the written record.15 The hearing request must be sent
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.16 OWCP has discretion, however, or grant or deny a
request that is made after this 30-day period.17 In such a case, it will determine whether to grant
a discretionary hearing and, if not, will so advise the claimant with reasons.18
ANALYSIS -- ISSUE 2
Appellant had 30 calendar days from OWCP’s August 16, 2010 decision to request a
review of the written record. Because her request was postmarked October 15, 2010, her request
was untimely.19 As section 8124(b)(1) is unequivocal on the time limitation for requesting a
12

See Daniel Hollars, 51 ECAB 355 (2000); see also C.F., Docket No. 07-1567 (issued January 17, 2008).

13

See J.C., Docket No. 10-1694 (issued May 23, 2011); T.P., Docket No. 08-975 (issued April 1, 2011).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

Id. at § 10.616(a).

17

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

18

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

19

OWCP regulations and the procedure manual provide that the timeliness of a request for a hearing is
determined on the basis of the postmark of the envelope containing the request. 20 C.F.R. § 10.616(a); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a)
(June 1997).

4

hearing, appellant was not entitled to a review of the written record as a matter of right.
Exercising its discretion to grant or deny a review of the written record, OWCP denied her
request finding that she could equally well address any issues in her case by requesting
reconsideration. Because reconsideration exists as an alternative appeal right to address the
issues raised by OWCP’s August 16, 2010 decision, the Board finds that it did not abuse its
discretion in denying appellant’s untimely request for a review of the written record.20
CONCLUSION
The Board finds that appellant has established entitlement to compensation for medical
treatment on April 22, 2010, but has not otherwise established that she was disabled from
April 19 to 30, 2010 as a result of her accepted left wrist and emotional conditions. The Board
also finds that OWCP properly denied appellant’s request for a review of the written record as
untimely.
ORDER
IT IS HEREBY ORDERED THAT the November 2 and August 16, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: September 20, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

20

Gerard F. Workinger, 56 ECAB 259 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FORESTS IN TEXAS, Lufkin, TX,
Employer
__________________________________________

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

Docket No. 10-621
Issued: November 23, 2010

Case Submitted on the Record

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

JURISDICTION
On January 6, 2010 appellant filed a timely appeal from a November 20, 2009 merit
decision of the Office of Workers’ Compensation Programs which denied her claim for a period
of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the wage-loss claim.
ISSUE
The issue is whether appellant was disabled during the period March 14, 2004 through
May 28, 2005 causally related to her March 9, 2004 work injury.
FACTUAL HISTORY
The instant case involves a March 9, 2004 injury that was accepted for a left meniscus
tear, bilateral shoulder sprain and left chondromalacia patella. Appellant, then a 45-year-old
forest biologist, was in a temporary appointment on the date of injury. The Office authorized a
right knee arthroscopy on May 27, 2004 and surgical repair of a torn left shoulder rotator cuff on
July 8, 2004. Appellant received compensation benefits for disability. She was released to work

with restrictions on September 1, 2004. Appellant returned to work on December 13, 2004 in a
temporary appointment as a wildlife biologist with a term limit not to exceed one year. By
decision dated March 3, 2005, the Office determined that her actual wages as a wildlife biologist
fairly and reasonably represented her wage-earning capacity and that she suffered no loss of
wage-earning capacity. Appellant subsequently requested a schedule award. In a decision dated
July 28, 2005, the Office granted 10 percent impairment to the left leg. The award ran from
March 24 to October 28, 2005. Effective March 18, 2005, appellant’s position as a wildlife
biologist was terminated due to lack of work and funding. On January 4, 2006 she underwent
another left shoulder arthroscopy, which the Office approved.1
By decision dated April 20, 2007, the Office awarded appellant compensation for the
period January 4 through August 8, 2006 but disallowed her claim for compensation benefits
after August 8, 2006.2
On May 12, 2009 the Office received a Form CA-7 claim for compensation for wage loss
from March 14, 2004 through May 28, 2005. The employing establishment reported the relevant
dates appellant was terminated and reinstated. It also indicated that she had received wage-loss
compensation and/or schedule award compensation for all or part of the period claimed.
In a May 21, 2009 letter, the Office advised appellant that it had previously paid
compensation for the period May 27 through December 10, 2004,3 when she was compensated
on an automatic basis, and from March 24 through October 28, 2005, when she received a
schedule award. It requested additional factual and medical information from appellant and the
employing establishment for the periods March 14 through May 26, 2004 and December 13,
2004 through March 23, 2005.
In a May 28, 2009 letter, the employing establishment verified the dates appellant was
employed and those dates she was not employed. Pay rate information was also submitted. No
additional information was received from appellant.
By decision dated November 20, 2009, the Office denied appellant’s claim for wage-loss
compensation from March 14, 2004 through May 28, 2005.

1

This case was previously before the Board. In a February 1, 2007 decision, the Board affirmed a June 9, 2006
Office decision finding that appellant did not establish a basis for modification of the March 3, 2005 wage-earning
capacity decision. The case was remanded for a determination on whether she had any disability arising from her
January 4, 2006 authorized surgery. Docket No. 06-1712 (issued February 1, 2007).
2

The Office noted that payment from January 4 through February 9, 2006 was the only period that could be
processed at that time. Appellant was to verify her entitlement to compensation and her employment status for the
period February 10 through August 8, 2006 before the Office could process the remainder of the compensation.
3

Office records actually support that compensation for disability was paid through December 12, 2004, not
December 10, 2004.

2

LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.4 Whether a particular injury causes an employee disability for employment
is a medical issue which must be resolved by probative medical evidence.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.6 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.7
ANALYSIS
The Office accepted that appellant sustained a left meniscus tear, bilateral shoulder sprain
and left chondromalacia patella due to her March 9, 2004 work injury. It also authorized
surgeries which appellant underwent on May 27 and July 8, 2004, and January 4, 2006 for her
right knee and left shoulder. Appellant claimed compensation for leave without pay for the
period March 14, 2004 through May 28, 2005.
The record reflects appellant was paid disability compensation benefits for the period
May 27 through December 10, 2004. She also received a schedule award that was paid from
March 24 through October 28, 2005. As appellant was paid compensation for these periods, she
is not entitled to any additional compensation for the same periods.8
Appellant claimed compensation for the entire period March 14, 2004 through
May 28, 2005. For the period March 14, 2004 to the date of her authorized knee surgery on
May 27, 2004 she submitted no evidence to demonstrate an inability to work. From May 27
through December 10, 2004 appellant received total disability compensation. She was working
for the employing establishment from December 12, 2004 until her termination on
March 18, 2005. Payment for appellant’s schedule award began on March 24, 2004 and
continued until October 28, 2005. The only period for which she was not either receiving
compensation or was employed was from March 14 to May 27, 2004. Although appellant was
advised in the Office’s May 21, 2009 letter to submit additional information pertaining to those
4
5
6

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).
Paul E. Thams, 56 ECAB 503 (2005).
Id.; see W.F., 57 ECAB 705 (2006).

7

L.D., 61 ECAB ___ (Docket No. 09-1503, issued April 15, 2010); Amelia S. Jefferson, 57 ECAB 183 (2005);
Fereidoon Kharabi, 52 ECAB 291 (2001).
8

See Dale Mackelprang, 55 ECAB 174 (2003) (it is well established that a claimant is not entitled to dual
workers’ compensation benefits for the same injury).

3

periods, no further information was submitted. The record has no evidence to support
entitlement to compensation during these periods. For each period of disability claimed, the
employee has the burden of establishing that he or she was disabled for work as a result of the
accepted employment injury.9 The issue of whether a claimant’s disability is related to an
accepted condition is a medical question which must be established by a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disability is
causally related to employment factors and supports that conclusion with sound medical
reasoning.10 The Board finds that there is no such evidence in this case.
On appeal appellant contends she has not been reimbursed for any of her lost wages. As
noted, however, she was compensated for wage-loss compensation and/or schedule award
compensation for much of the period claimed. For the other portions of intermittent disability,
appellant did not submit sufficient evidence to establish that she was unable to work due to
residuals of her accepted conditions. She also raised issues concerning her employment and
inability to find work. The Board has jurisdiction over decisions of the Office in cases arising
under the Act.11 The only Office decision over which the Board has jurisdiction, the
November 20, 2009 decision, addressed only appellant’s entitlement to compensation for
disability from March 14, 2004 through May 28, 2005. The Board has no jurisdiction over the
other matters.
CONCLUSION
The Board finds that appellant has not established entitlement to further wage-loss
compensation from March 14, 2004 through May 28, 2005 causally related to her March 9, 2004
work injury.

9

See Amelia S. Jefferson, supra note 7.

10

See Sandra D. Pruitt, 57 ECAB 126 (2005).

11

See 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 11-1957
Issued: April 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 26, 2011 appellant filed a timely appeal from a June 6, 2011 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 sustained low back or right-sided carpal tunnel conditions
in the performance of duty.
FACTUAL HISTORY
Appellant, a 41-year-old rural carrier, filed a Form CA-2 claim for benefits on
October 29, 2010, alleging that she developed low back and right carpal tunnel conditions
causally related to employment factors. She asserted that repeated lifting and casing mail
1

5 U.S.C. § 8101 et seq.

resulted in a herniated disc and carpal tunnel syndrome in her right hand. Appellant first became
aware that the conditions were work related on February 1, 2010.
On November 8, 2010 OWCP advised appellant that it required factual and medical
evidence to determine whether she was eligible for compensation benefits. It asked her to submit
a comprehensive report from a treating physician describing her symptoms and the medical
reasons for her condition and an opinion as to whether her claimed condition was causally
related to her federal employment. OWCP requested that appellant submit this evidence within
30 days. Appellant submitted several medical reports which were received by OWCP on
December 3, 2010.
In a February 15, 2010 report, Dr. S.R. Reddy Katta, a specialist in internal medicine,
advised that appellant had experienced chronic lower back pain for a long time; the pain had
recently increased and radiated to her right lower extremity. Appellant also had numbness and
tingling in her right lower extremity and in her hands, right more than the left, mainly at night.
Dr. Katta attributed her lower back pain to degenerative disc disease with right lumbar
radiculitis. He ruled out associated bilateral carpal tunnel syndrome.
Dr. Katta administered an electromyogram (EMG) and nerve conduction studies of both
upper extremities which were suggestive of early left carpal tunnel syndrome. There was no
evidence of ulnar nerve compression neuropathy or generalized peripheral neuropathy. Dr. Katta
also administered epidural injections to alleviate appellant’s low back pain. He advised her to
avoid any activity that irritated her back and to continue off work at least for another two weeks.
Appellant denied any specific injury.
Dr. Katta referred appellant for a magnetic resonance imaging (MRI) scan on
February 18, 2010. The results of this test showed that she had a herniated nucleus pulposus at
L5-S1 with right lumbar radiculopathy, in addition to degenerative disc disease. Appellant also
had mild central spinal canal stenosis at L4-5 and mild-to-moderate right greater than left central
spinal canal stenosis at L5-S1.
In a February 26, 2010 report, Dr. Brian N. Jones, a Board-certified anesthesiologist,
stated that appellant had a three-year history of low back and right lower extremity pain. He
advised that her symptoms were exacerbated by a fall she had in December 2009. Dr. Jones
noted that appellant’s low back pain was worsening and aggravated by sitting, standing, walking
and lying down. He noted that she had a history of arthritis and carpal tunnel syndrome in her
right hand.
Dr. Katta referred appellant to Dr. Mark J. Maguire, Board-certified in orthopedic
surgery. In an April 2, 2010 report, Dr. Maguire noted that appellant’s work required lifting and
sorting at work, in addition to computer work. He asserted that repetitive activities aggravated
the symptoms in her right hand, to the point where she was experiencing numbness and nearconstant tingling in her fingers. Dr. Maguire noted that appellant had been diagnosed with carpal
tunnel syndrome and recommended carpal tunnel release surgery.

2

In a May 12, 2010 follow-up report, Dr. Maguire stated that appellant had a carpal tunnel
release performed on April 8, 2010, which had improved her condition. He noted that she had
returned to work at the employing establishment.
In a June 18, 2010 report, Dr. Katta stated that appellant had chronic lower back pain
with right lumbar radiculitis. Appellant had recent exacerbations of her back pain and had
undergone an MRI scan which showed a herniated nucleus pulposus at L5-S1, with right lumbar
radiculopathy. Dr. Katta noted that she had undergone physical therapy and received a lumbar
epidural steroid injection, both of which had improved her condition, but the pain had recently
returned. He diagnosed chronic lower back pain due to degenerative lumbar disc disease with
right lumbar radiculopathy. Dr. Katta advised appellant to continue her home exercise program
and medication and avoid any activity that irritated her back. He opined that she was disabled
from full duty for at least the next two months.
In a July 28, 2010 report, Dr. Katta noted that appellant wanted to return to work on a
light-duty basis and that he planned to release her to work beginning August 2, 2010.
In a report dated September 15, 2010, Dr. Katta stated that appellant had complaints of
continued back pain and stiffness and muscle spasms. Appellant attempted to return to light duty
on August 2, 2010; however, the employing establishment insisted that she return to full duty
without restrictions. Dr. Katta stated that she remained impaired to return to work without
restrictions at least until October 31, 2010. He projected that appellant could return to work
without restrictions beginning November 1, 2010.
In an October 27, 2010 report, Dr. Katta stated that appellant continued to experience
chronic lower back pain and right lumbar radiculitis with recent exacerbation of her back pain.
He noted that she wanted to return to work when he saw her on September 15, 2010; she stated,
however, that the employing establishment told her that her disc problem might cause her more
discomfort if she had to pick up weights up to 70 pounds. Dr. Katta advised appellant to
continue with her present medication and home exercise program and avoid any activity that
irritated her back. Appellant was precluded from working full duty for the next three months.
By decision dated January 7, 2011, OWCP denied the claim, finding that appellant failed
to submit medical evidence sufficient to establish that her low back or right carpal conditions
were causally related to factors of employment.
On March 16, 2011 appellant requested reconsideration.
In a February 7, 2011 report, Dr. Katta reviewed appellant’s treatment and reiterated his
findings and conclusions.
In a March 2, 2011 report, Dr. Katta reiterated that appellant had chronic low back pain
from degenerative disc disease with a herniated nucleus pulposus and right lumbar
radiculopathy. Appellant also had associated bilateral carpal tunnel syndrome, right more than
the left side. Dr. Katta advised that she had undergone carpal tunnel release on her right wrist on
April 8, 2010. He found that appellant could return to work with restrictions on lifting, pulling
or pushing more than 15 to 20 pounds and frequent bending. Dr. Katta recommended that she

3

change her position frequently from sitting to standing to walking on an as-needed basis every 30
to 45 minutes.
Dr. Katta advised that carpal tunnel syndrome typically was more common in people who
used their hands on a repetitive basis. He was unsure as to the cause of appellant’s degenerative
disc disease and carpal tunnel syndrome, but because she was required to pick up weights up to
70 pounds and did not experience a specific injury or one particular incident at home, she “might
have” sustained her lumbar disc at work. Dr. Katta indicated that persons who pick up weights
of up to 70 pounds sometimes “mess up” their backs. Due to her work as a mail carrier,
appellant was also prone to carpal tunnel syndrome. Dr. Katta reiterated that she was capable of
returning to light duty in the event the employing establishment had such work available.
By decision dated June 6, 2011, OWCP denied modification of the January 7, 2011
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the

2

Id.

3

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

4

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

4

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed low back and right carpal tunnel
conditions and her federal employment. This burden includes providing medical evidence from
a physician who concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her claimed low back and right carpal tunnel conditions were causally related to factors of
employment. For this reason, she has not discharged her burden of proof.
With regards to her claimed low back condition, appellant submitted reports from
Drs. Katta and Jones, who related findings of chronic lower back pain, right lumbar
radiculopathy, degenerative lumbar disc disease, herniated nucleus pulposus at L5-S1 and rightsided carpal tunnel syndrome. Neither of these physicians, however, provided a probative,
rationalized medical opinion that the claimed conditions or disability were causally related to
employment factors. In his February 15, 2010 report, Dr. Katta noted complaints of long-term,
chronic lower back pain which radiated to her right lower extremity, in addition to numbness and
tingling. He diagnosed degenerative disc disease with right lumbar radiculitis. Dr. Katta advised
that appellant had experienced a recent exacerbation of her back pain which resulted in disability
from work, though she denied any specific injury. Appellant underwent a February 18, 2010
MRI scan which revealed a herniated nucleus pulposus at L5-S1, right lumbar radiculopathy,
degenerative disc disease, mild central spinal canal stenosis at L4-5 and mild-to-moderate central
spinal canal stenosis at L5-S1. Dr. Katta continued to treat her for these conditions through 2010
and 2011 and opined that she could return to work on light duty.
Dr. Katta indicated in several reports that appellant wanted to return to work but was
unable to do so because the employing establishment only had full duty available. In his
October 27, 2010 report, he noted that appellant wanted to return to work when he saw her on
September 15, 2010, but the employing establishment told her that her disc problem might cause
her more discomfort if she had to pick up weights up to 70 pounds. In a March 2, 2011 report,
Dr. Katta stated that she continued to experience chronic low back pain but could return to work
with restrictions on lifting, pulling or pushing more than 15 to 20 pounds and frequent bending.
He advised appellant to change positions every 30 to 45 minutes. Dr. Katta was unsure as to the
cause of her degenerative disc disease and carpal tunnel syndrome; he stated, however, she
“might have” damaged her lumbar disc at work because she was required to pick up weights up
to 70 pounds and did not experience a specific injury or one particular incident at home. He
advised that persons who lift weights up to 70 pounds sometimes “mess up” their backs.
Dr. Jones advised in his February 26, 2010 report that appellant had a three-year history of low
5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

back and right lower extremity pain, which had been aggravated by sitting, standing, walking
and lying down. He asserted that her symptoms were exacerbated by a fall she sustained in
December 2009.
The opinions of Drs. Katta and Jones, however, are of limited probative value as they do
not contain any medical rationale explaining how appellant’s claimed lower back condition was
physiologically related to factors of employment.7 The weight of medical opinion is determined
by the opportunity for and thoroughness of examination, the accuracy and completeness of a
physician’s knowledge of the facts of the case, the medical history provided, the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.8 These
physicians 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 condition.
Moreover, while Drs. Katta and Jones indicated that appellant had experienced chronic back pain
for several years, including a significant exacerbation in December 2009 they did not address her
preexisting back condition in any detail or how appellant’s work duties were competent to cause
the diagnosed conditions. Dr. Katta’s opinion on causation is of limited probative value for the
further reason that it is generalized in nature and equivocal in that he stated that appellant “might
have” damaged her lumbar disc at work because she was required to pick up heavy weights.
Appellant submitted reports from Drs. Katta and Maguire in support of her claim for a
right-sided carpal tunnel condition. In his February 15, 2010 report, Dr. Katta stated that she had
numbness and tingling in her hands, primarily in her right hand. He ruled out bilateral carpal
tunnel syndrome associated with appellant’s low back condition at that time. Dr. Katta
administered EMG and nerve conduction studies of both upper extremities which he found
indicative of early left carpal tunnel syndrome. Dr. Maguire stated in his April 2, 2010 report
that appellant had been experiencing long-term difficulties with her right hand. He opined that
she engaged in repetitive activities like lifting, sorting and computer work which aggravated the
symptoms in her right hand, to the extent where she was experiencing numbness and nearconstant tingling in her fingers. Dr. Maguire stated that appellant had been diagnosed with
carpal tunnel syndrome and recommended a right carpal tunnel release, which she underwent on
April 8, 2010. He advised in a May 12, 2010 report that the procedure had improved her
condition and that she had returned to work with the employing establishment. Dr. Katta stated
in his March 2, 2011 report that appellant had bilateral carpal tunnel syndrome, right more than
the left side, which he associated with her low back condition. He noted that she had carpal
tunnel release performed on her right wrist on April 8, 2010. Dr. Katta advised that carpal tunnel
syndrome was more common in people who use their hands on a repetitive basis. He opined that
appellant’s work as a mail carrier could also make her prone to carpal tunnel syndrome.
The opinions of Drs. Katta and Maguire, however, are of limited probative value as they
do not contain any medical rationale explaining how appellant’s job duties physiologically
caused the diagnosed condition of right-sided carpal tunnel syndrome. Their reports thus did not
constitute adequate medical evidence to establish that appellant’s claimed right-sided carpal
tunnel condition was causally related to her employment.
7

William C. Thomas, 45 ECAB 591 (1994).

8

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

6

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that her condition was caused, precipitated or aggravated by her employment sufficient
to establish causal relationship.9 Causal relationship must be established by rationalized medical
opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed lower back and right-sided carpal tunnel conditions were causally
related to her employment. Accordingly OWCP properly found in its January 7 and June 6, 2011
decisions that appellant did not sustain these conditions in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed low back and right-sided carpal tunnel conditions were sustained in the performance of
duty.

9

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD BUREAU, Sacramento, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1958
Issued: June 27, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On August 26, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) May 19, 2011 merit decision denying his request for
reconsideration of a July 2, 2002 loss of wage-earning capacity determination. The appeal was
docketed as No. 11-1958.
This case has previously been before the Board. In an April 8, 2004 decision, the Board
affirmed OWCP’s decision that reduced appellant’s compensation to reflect his wage-earning
capacity in the constructed position of budget officer.1 In a March 4, 2011 decision, the Board
set aside OWCP’s November 9, 2009 decision which found that appellant’s reconsideration
request was untimely filed and did not establish clear evidence of error. The Board found that
appellant’s June 16, 2009 request for review was a request for modification of OWCP’s July 2,
2002 loss of wage-earning capacity determination. The Board directed OWCP to adjudicate the
request as a request for modification of a wage-earning capacity determination.2

1

Docket No. 03-2281 (issued April 8, 2004), order denying petition for recon., (issued August 2, 2004).

2

Docket No. 10-1379 (issued March 4, 2011).

Following the Board’s March 4, 2011 remand, OWCP issued its May 19, 2011 decision.
It advised that it denied appellant’s request for reconsideration after a merit review. The decision
noted the requirements for modifying a wage-earning capacity determination but further noted
the standard for reopening a claim for merit review following a reconsideration request. The
decision also found that the evidence provided by appellant did not establish “clear evidence of
error,” a standard used to consider an untimely reconsideration request.3 OWCP’s decision
concluded by declining to modify its July 2, 2002 wage-earning capacity decision as the
additional evidence and argument provided by appellant was “repetitive, duplicative, irrelevant
and insufficient,” a standard typically used in considering whether to grant a merit review from a
timely reconsideration request.4 As noted, the Board’s March 4, 2011 decision specifically
found that appellant’s June 16, 2009 request should not be treated as a reconsideration request
but should be adjudicated as a request for modification of a wage-earning capacity
determination.
Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.5 Its regulations at section 10.126 of
Title 20 of the Code of Federal Regulations provide: The decision of the Director of OWCP
shall contain findings of fact and a statement of reasons.6 Moreover, OWCP’s procedure manual
provides: The reasoning behind OWCP’s evaluation should be clear enough for the reader to
understand the precise defect of the claim and the kind of evidence which would overcome it.7
The Board, having duly considered the matter, finds that OWCP’s May 19, 2011 decision
fails to properly explain the findings with respect to the issue presented. Although the decision
indicates that it is a merit decision and finds the evidence insufficient to overcome OWCP’s
wage-earning capacity decision, it is unclear whether the proper standard of review was utilized.
Modification of a wage-earning capacity determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.8
OWCP appears to have analyzed appellant’s request both as a timely and untimely request for
reconsideration under 5 U.S.C. § 8128(a). There is no clear discussion, for example, as to
whether the evidence and argument provided by appellant showed a material change in the
nature and extent in the employment-related condition or whether the original wage-earning
capacity determination was erroneous. Thus, OWCP, in its May 19, 2011 decision, did not
discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that appellant could understand the basis for the decision, i.e.,
3

See, e.g., Darletha Coleman, 55 ECAB 143 (2003).

4

See, e.g., James W. Scott, 55 ECAB 606 (2004).

5

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

6

20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket
No. 09-956 (issued April 15, 2010).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

8

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).

2

whether he met his burden of proof to show modification of the loss of wage-earning capacity
determination.
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding appellant’s request for modification of a wageearning capacity determination. Following this and such further development as OWCP deems
necessary, it shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2011 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: June 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1580
Issued: November 8, 2013

Case Submitted on the Record

ORDER GRANTING MOTION TO
REVERSE AND REMAND
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On June 24, 2013 appellant, through his representative, file a timely appeal from a
December 27, 2012 decision of the Office of Workers’ Compensation Programs (OWCP). By
this decision, citing to Board precedent,1 OWCP denied appellant’s claim for augmented
compensation on the grounds that “the Defense of Marriage Act (DoMA) prohibits [OWCP]
from recognizing a marriage between two individuals of the same sex.” Appellant’s
representative requested oral argument before the Board.
The Director of OWCP filed a motion dated August 19, 2013, requesting the Board to set
aside OWCP’s December 27, 2012 decision and remand the case for payment of the augmented
compensation benefits.2 The Director acknowledged that on June 26, 2013 the United States
Supreme Court (the Court) ruled that section 3 of DoMA, which “limited the definition of spouse
to a person of the opposite sex who is a husband or wife,” is unconstitutional. The Court struck
1
2

OWCP cited to the Board’s holding in C.M., 58 ECAB 436 (2007).

The Director also requested that the Board overrule its holding in C.M., in which the Board affirmed OWCP’s
denial of augmented compensation due to same sex marriage under DoMA. The Board concludes that it is
unnecessary to rule on this aspect on the current appeal.

down the provisions of DoMA which denied federal benefits to legally married, same sex
couples.3 Turning to the current appeal, the Director concluded that, in light of the Court’s
ruling in Windsor and, in light of the fact that appellant has established a valid marriage to his
spouse in the State of Vermont appellant is entitled to augmented compensation.
The Clerk of the Board served appellant and his representative with a copy of the
Director’s motion to reverse and remand. In a response dated August 6, 2013 and received by
the Board on August 13, 2013 and in a September 17, 2013 response, appellant’s representative
concurred in the Director’s motion.
The Board has duly considered the matter and concludes that, as the Director has
acknowledged the Court’s ruling in Windsor relative to the unconstitutionality of section 3 of
DoMA denying federal benefits to legally married same sex couples, as the Director has
requested the Board to reverse its December 27, 2012 decision denying appellant augmented
benefits under this unconstitutional section and as, on remand, OWCP will pay augmented
compensation to appellant, the Director’s motion should be granted. Accordingly,
IT IS HEREBY ORDERED THAT the motion to reverse and remand filed by the
Director of the Office of Workers’ Compensation Programs is granted. The decision of OWCP
dated December 27, 2012 is reversed; the case is remanded for further proceedings consistent
with this order of the Board.
Issued: November 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3

See United States v. Windsor, 133 S. Ct. 2675 (2013).

2


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

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2424
Issued: March 18, 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 September 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 13, 2007 merit decision denying her traumatic injury claim and
its September 6, 2007 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on January 18, 2006; and (2) whether the
Office properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On January 19, 2006 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim alleging that she injured her neck, left shoulder, hip, upper back and lower left leg on the
morning of January 18, 2006, while lifting a heavy satchel onto her left shoulder. In an

accompanying statement, she described that, as she put the 15- to 20-pound satchel on her
shoulder, she felt a sharp pain starting with her neck, shoulder and shoulder blade, upper and
lower back, hip and leg, with tingling and numbness throughout her left side.
The employing establishment controverted appellant’s claim on the grounds that she had
not reported the alleged incident to her supervisor on the date in question. On the afternoon of
January 18, 2006, the station manager observed appellant walking and talking, in no apparent
pain.
Appellant submitted a work status report dated January 19, 2006, bearing an illegible
signature, reflecting diagnoses of: “C-spine; thoracic spine strain, strain; lumbar spine strain,
sprain; left shoulder strain, sprain.” She was restricted from lifting, pushing, bending stooping,
kneeling or squatting.
On January 25, 2006 the Office informed appellant that the evidence submitted was
insufficient to establish her claim. Appellant was advised to provide additional information and
evidence, including a medical report containing a diagnosis and a rationalized opinion relating
her diagnosed condition to factors of her employment.
Appellant submitted a report dated January 19, 2006 from Dr. Ramiro Futalan, Boardcertified in the area of occupational medicine. Dr. Futalan related that, on January 18, 2006, as
appellant placed a 15- to 20-pound mailbag on her left shoulder, she felt a sharp pain, numbness
and tingling throughout her left side from neck to front. On examination, active range of motion
was moderately restricted due to pain. Appellant experienced pain and tenderness at the anterior
and posterior aspect of the left shoulder, with moderate restriction of abduction to 90 degrees,
external and internal rotation with arm in abduction. Flexion and extension were executed with
pain at 75 degrees respectively. An examination of the upper and lower back revealed pain and
tenderness at the left parathoracic and paralumbar spine, with guarding of the paraspinalis.
Bilateral straight leg raise was executed with pain at 45 degrees. There was moderate restriction
of spinal mobility, especially flexion. Extension movement was at 35 degrees and 10 degrees
respectively. Knee reflexes were hypoactive. Dr. Futalan diagnosed sprain/strain of the thoracic
spine, cervical spine, lumbar spine and left shoulder. He indicated by placing a checkmark in the
“yes” box that his findings and diagnosis were consistent with appellant’s account of the injury.
On February 24, 2006 appellant expressed her belief that the January 18, 2006 injury was
work related. She alleged that her repetitive work duties, including pushing and pulling carts
weighing up to 25 pounds and carrying heavy loads of mail, were responsible for her previous
work injuries.1 The record contains physical therapy notes for the period January 25 through
February 22, 2006.
Appellant submitted a February 6, 2006 report of a January 23, 2006 examination from
Dr. Thai T. Do, a treating physician, who provided a history of injury, indicating that appellant
developed pain in the left side of her neck and shoulder on January 18, 2006, after carrying a
20-pound satchel for half an hour. His examination revealed tenderness to rotation to the right
1

Appellant stated that previous work injuries included: April 30, 2001 and December 30, 2002 neck injuries;
August 29, 1998 and April 30, 2001 shoulder injuries; and May 25, 1995 and April 30, 2001 back injuries.

2

and lateral bend and rotation to the right produced symptoms in the left arm. Examination of the
neck revealed tenderness on palpation of the left upper trapezius medial scalpula area. There
was full range of motion of the shoulders. Dr. Do found mild tenderness to palpation of the
lower lumbar area, with good range of motion. He diagnosed myofascial strain of the left
trapezius; lower back strain with some sciatica symptoms and left cervical strain. In a
February 7, 2007 report of an examination conducted on that date, Dr. Do reiterated his previous
diagnoses. He released appellant to modified duty, restricting her from lifting or carrying more
than 10 pounds, or carrying mail for more than two hours per day.
By decision dated March 9, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not demonstrate that the claimed medical condition was causally
related to the established work-related event. The Office noted that three previous claims filed
by appellant between 1995 and 2002 had been accepted for neck strain (File Nos. 131078276;
132027632; and 13205677). However, appellant’s physicians did not explain why her current
condition was not related to those injuries, rather than to the January 18, 2006 incident.
Appellant submitted follow-up reports dated February 22 and March 22, 2006 from
Dr. Do, who reiterated his diagnoses. The record contains reports of June 20, 2006 magnetic
resonance imaging (MRI) scans of the left shoulder, lumbar spine and cervical spine. The record
also contains a June 27, 2006 electromyographic (EMG) report of appellant’s upper and lower
extremities.
In an October 30, 2006 report, Dr. Albert Simpkins, a Board-certified orthopedic
surgeon, stated that appellant experienced a traumatic injury on January 18, 2006 while working.
Appellant grabbed her mail satchel with her right hand, slung it over her left shoulder, and
immediately felt a sharp pain in her left shoulder, which radiated down to her arm. Examination
revealed tenderness in the lower cervical spine in the midline; tenderness along the left upper
trapezius, levator scapulae, and rhomboid musculature; and tenderness in the deltopectoral
groove on the left and left pectoralis major. Examination of the lumbar spine revealed pain and
limping on the left; normal alignment, shoulders at iliac crest level; tenderness of the left PSIS,
left sciatic notch and in the inner spinous area of the lumbar spine. Pathological reflexes were
absent. The June 20, 2006 MRI scan of the cervical spine revealed one- to two-millimeter (mm)
disc bulges at C3-4, C4-5 and C5-6. The MRI scan of the lumbar spine showed one- to two-mm
bulges at L4-5 and L5-S1. Dr. Simpkins observed a possible minimal disc desiccation and subtle
focal annular tear of the right extraforaminal region of the L4-5 disc. The MRI scan of the right
shoulder revealed minimal tendinitis of the supraspinatus tendon. Dr. Simpkins diagnosed left
posterior shoulder strain with myofascial tenderness of the left upper trapezius, levator scapulae
and rhomboid; musculoligamentous tenderness of the cervical spine and superimposed multilevel
disc protrusions; and musculoligamentous tenderness of the lumbar spine consistent with
musculoligamentous injury, with superimposed multilevel disc protrusions. He opined that
appellant’s present symptoms were the result of her industrial injury.
On February 8, 2007 appellant, through her representative, requested reconsideration of
the Office’s March 9, 2006 decision, contending that, although appellant’s condition was caused
by the repetitive nature of her job duties, it was exacerbated by the January 18, 2006 incident.
She submitted an unsigned medical report dated June 14, 2006 from Performance Health
Medical Group, reflecting her account of the January 18, 2006 incident, and diagnoses of

3

cervical disc syndrome; left shoulder tendinitis with impingement; and lumbar disc syndrome.
Appellant submitted a statement dated February 5, 2007 indicating that she had informed her
supervisor that she was “hurting” following her injury on January 18, 2006.
In a report dated July 26, 2006, Dr. Hosea Brown, III, a Board-certified internist, stated
that appellant sustained an acute injury to her neck, left shoulder and low back on January 18,
2006 while attempting to lift a heavy satchel onto her left shoulder. He noted that appellant had
sustained injuries to her neck and left shoulder in the past, including a left shoulder sprain in
2001 that had been accepted by the Office, and detailed appellant’s duties as a mail handler.
Dr. Brown’s examination revealed evidence of decreased range of motion of the cervical spine,
and spasm of the paraspinal cervical musculature. His findings were consistent with left
shoulder tendinitis, with evidence of decreased range of motion of the left shoulder and positive
impingement sign and positive left-sided acromioclavicular tenderness. Dr. Brown diagnosed
multilevel cervical disc syndrome with intervertebral disc herniations at C3-4, C4-5 and C5-6;
multilevel lumbar disc syndrome with intervertebral disc herniations at L4-5 and L5-S1; focal
annular tear at L4-5 disc; and left shoulder tendinitis with impingement. Noting that appellant’s
underlying condition was caused by the repetitive nature of her job duties, he opined that the
lifting incident of January 18, 2006 precipitated and aggravated the underlying conditions of
cervical disc syndrome, with secondary cervical musculature contraction, as well as masking the
left shoulder tendinitis with impingement. On December 26, 2006 Dr. Brown modified his
diagnoses to include lumbar and cervical radiculitis.
By decision dated April 13, 2007, the Office denied modification of its March 9, 2006
decision. The Office noted that no physician had opined that appellant’s diagnosed conditions
were caused by the January 18, 2006 incident.
On June 4, 2007 appellant, through her representative, requested reconsideration. She
submitted a May 9, 2007 letter from Dr. Brown, who reiterated his opinion that the underlying
latent conditions from which appellant suffered were precipitated and aggravated by the
January 18, 2006 work injury.
By decision dated September 6, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence presented was cumulative, repetitious and not
specific to the original claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of 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 or specific condition for which
compensation is claimed is causally related to the employment injury.2 When an employee
claims that she sustained a traumatic injury in the performance of duty, she must establish the
fact of injury, consisting of two components which must be considered in conjunction with one
2

Robert Broome, 55 ECAB 339 (2004).

4

another. The first is whether the employee actually experienced the incident that is alleged to
have occurred at the time, place and in the manner alleged. The second is whether the
employment incident caused a personal injury.3
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 An award of
compensation may not be based on appellant’s belief of causal relationship.5 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.6 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.7
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant lifted a heavy satchel onto her left shoulder on
January 18, 2006 while delivering mail. However, her claim was denied on the grounds that the
medical evidence failed to establish that the claimed medical condition was related to the
established work-related event. The Board finds that this case is not in posture for decision
regarding whether appellant sustained an injury in the performance of duty.
The Board notes that the medical evidence of record generally supports that appellant
sustained an injury on January 18, 2006. On the day following the work incident, Dr. Futalan
stated that appellant had experienced severe pain, numbness and tingling on the date in question,
while placing a 15- to 20-pound mailbag on her left shoulder. He provided a definitive
diagnosis, based on the information available at that time, which related appellant’s condition to
3

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
4

Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Id.

7

20 C.F.R. § 10.303(a).

8

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

5

the work incident. Following a January 23, 2006 examination, Dr. Do stated that appellant had
developed pain in her neck and left shoulder after lifting a mail satchel at work on the date in
question. He, too, provided a diagnosis consistent with the alleged injury. On October 30, 2006
Dr. Simpkins indicated that appellant experienced a traumatic injury on January 18, 2006, when
she slung her mail satchel over her left shoulder. Based on his thorough examination of
appellant and review of the MRI scan and EMG test results, he provided diagnoses of left
posterior shoulder strain with myofascial tenderness of the left upper trapezius, levator scapulae,
and rhomboid; musculoligamentous tenderness of the cervical spine and superimposed multilevel
disc protrusions; and musculoligamentous tenderness of the lumbar spine consistent with
musculoligamentous injury with superimposed multilevel disc protrusions. Dr. Simpkins opined
that appellant’s present symptoms were the result of her industrial injury. Although none of
these reports explains in detail how the January 18, 2006 work incident caused her diagnosed
conditions, they are factually consistent with treatment for a traumatic injury.
Dr. Brown’s July 26, 2006 and June 4, 2007 narrative reports further support appellant’s
claim. He provided an accurate history of injury. Based on Dr. Brown’s review of the medical
record and thorough examination, he diagnosed multilevel cervical disc syndrome with
intervertebral disc herniations at C3-4, C4-5 and C5-6; multilevel lumbar disc syndrome with
intervertebral disc herniations at L4-5 and L5-S1; focal annular tear at L4-5 disc; and left
shoulder tendinitis with impingement. Dr. Brown stated that appellant’s underlying latent
conditions were caused by the repetitive nature of her job duties. However, after noting
appellant’s previous cervical and shoulder injuries, he opined that the lifting incident of
January 18, 2006 precipitated and aggravated those underlying conditions.
The reports of the attending physicians are not fully rationalized; however, they are
consistent in indicating that appellant sustained an employment-related neck and left shoulder
injury on January 18, 2006, and are not contradicted by any substantial medical or factual
evidence of record. The Board finds that, while the reports are not sufficient to meet appellant’s
burden of proof to establish her claim, they raise an uncontroverted inference between her
claimed condition and the accepted incident, and are sufficient to require further development of
the medical evidence.9 On remand, the Office shall obtain a rationalized opinion from a
qualified physician as to whether appellant’s current condition is causally related to the accepted
incident, and issue an appropriate decision in order to protect her rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty on January 18, 2006.10

9

See Virginia Richard, supra note 9; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone,
41 ECAB 354 (1989).
10

In light of the Board’s ruling on the first issue, the second issue before the Board is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6 and April 13, 2007 are set aside and remanded for
further development consistent with this decision.
Issued: March 18, 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

7